Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing: (a) any failure by the Servicer to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made or given by the Servicer under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business Days; (b) failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture or any other Transaction Document to which the Servicer is a party and such failure continues unremedied for a period of 30 days after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes; (c) any representation and warranty made by the Servicer in this Indenture shall prove to have been incorrect in any material respect when made and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days after the earlier of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes; (d) an Insolvency Event shall occur with respect to the Servicer or the Performance Guarantor; or (e) the Servicer shall fail to deliver the reports described in Section 8.1 of this Indenture and such failure shall continue for five Business Days. THEN, so long as such Servicer Default shall be continuing, the Control Party by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency (a “Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraph.
Appears in 3 contracts
Samples: Indenture and Servicing Agreement (Wyndham Worldwide Corp), Indenture and Servicing Agreement (Wyndham Worldwide Corp), Indenture and Servicing Agreement (Wyndham Worldwide Corp)
Servicer Defaults. If any one of the following events (each, a “----------------- "Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Enhancement on or before the date occurring five Business Days after the date such payment, transfer transfer, deposit, withdrawal or deposit drawing or such instruction or notice is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysAgreement;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Indenture or Agreement, which has a material adverse effect on the Investor Certificateholders of any other Transaction Document to Series and which the Servicer is a party and such failure continues unremedied for a period of 30 60 days after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Insurer or the Holders of 25Investor Certificates evidencing Undivided Interests aggregating not less than 50% or more of the Aggregate Principal Invested Amount of the Notesany Series materially adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period;
(c) any representation and representation, warranty or certification made by the Servicer in this Indenture Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has a material adverse effect on the Investor Certificateholders of any Series and which continues to be incorrect in any material respect when made and has for a material and adverse impact on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days period of 60 days after the earlier of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach failure, requiring that such breach the same to be remedied, shall have been given to the Servicer by the Trustee Trustee, or to the Servicer and the Trustee by the Insurer or the Holders of 25Investor Certificates evidencing Undivided Interests aggregating not less than 50% or more of the Aggregate Principal Invested Amount of the Notes;
(d) an Insolvency Event shall occur with respect any Series materially adversely affected thereby and continues to the Servicer or the Performance Guarantormaterially adversely affect such Investor Certificateholders for such period; or
(e) the Servicer shall fail to deliver the reports described in Section 8.1 of this Indenture and such failure shall continue for five Business Days. THEN, so long as such Servicer Default shall be continuing, the Control Party by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency (a “Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraph.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Greentree Floorplan Funding Corp), Pooling and Servicing Agreement (Greentree Floorplan Funding Corp)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is (including without limitation with respect to Collections) as required to be made or given by the Servicer under the terms of this Indenture and such failure remains Agreement which continues unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result period of circumstances beyond the Servicer’s control, the grace period shall be extended to five three Business Days;
(b) any failure by the Servicer to give instructions or notice to the Administrative Agent and each Purchaser Agent as required by this Agreement, or to deliver any required Monthly Report or other Required Reports hereunder on or before the date occurring two Business Days after the date such instruction, notice or report is required to be made or given, as the case may be, under the terms of this Agreement;
(c) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any the other Transaction Document Documents to which the Servicer is a party and such failure the same continues unremedied for a period of 30 fifteen (15) days after the earlier to occur of the date on which the Servicer has actual knowledge of the failure and (i) the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Trustee, or to Administrative Agent and each Purchaser Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(cd) any representation and representation, warranty or certification made by the Servicer in this Indenture any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect in any material respect when made and made, which has a material and adverse impact Material Adverse Effect on the Trustee’s interest in Administrative Agent, any Purchaser Agent or the Pledged Loans Secured Parties and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days which continues to be unremedied for a period of fifteen (15) days after the earlier to occur of the date on which the Servicer has actual knowledge of such breach and (i) the date on which written notice of such breach incorrectness requiring that such breach the same to be remedied, remedied shall have been given to the Servicer by the Trustee Administrative Agent or to any Purchaser Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(de) an Insolvency Event shall occur with respect to the Servicer;
(f) any material delegation of the Servicer’s duties that is not permitted by Section 6.1;
(g) any financial or other information reasonably requested by the Administrative Agent, any Purchaser Agent or any Purchaser is not provided as requested within a reasonable amount of time following such request;
(h) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of $10,000,000, individually or in the aggregate, and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than sixty (60) consecutive days without a stay of execution;
(i) the failure of the Servicer to make any payment due with respect to any recourse debt or other obligations, which debt or other obligations are in excess of $10,000,000, individually or in the aggregate, or the Performance Guarantoroccurrence of any event or condition that would at such time permit acceleration of such recourse debt or other obligations;
(j) CapitalSource Inc.’s Consolidated Tangible Net Worth is less than (i) $1,015,000,000, plus (ii) 70% of the cumulative Net Proceeds of Capital Stock/Conversion of Debt received at any time after December 31, 2005 (other than the period commencing on January 1, 2008 and ending on September 30, 2008), plus (iii) 30% of the cumulative Net Proceeds of Capital Stock/Conversion of Debt received at any time during the period commencing on January 1, 2008 and ending on September 30, 2008;
(k) a payment default or other default, termination event or other similar event has occurred and is continuing (beyond any applicable grace period) under the Credit Agreement, any Citibank Facilities, the CS Europe Financing or under or with respect to any repurchase agreement, securitization or any other facility providing indebtedness for borrowed money, in each case, in an amount greater than $10,000,000 to or for the benefit of CapitalSource Inc. or any of its Subsidiaries (except for those securitizations or other facilities listed on Schedule VIII, as the same may be updated from time to time as mutually agreed by the Servicer and the Administrative Agent), and at such time such event permits the lender or holder of rights thereunder to terminate commitments, accelerate the obligations owing thereunder or otherwise exercise remedies thereunder; provided, that a Servicer Default arising as a result of a default, termination event, margin call or other similar event with respect to a repurchase agreement or series of repurchase agreements shall be deemed to be cured with the effect of being considered not to have occurred, to the extent that either (i) the surrender of the related collateral in whole to (or liquidation of the related collateral in whole by) the repo counterparty under such repurchase agreement (by itself or together with any payments made, or additional collateral provided to, the repo counterparty) constitutes satisfaction in full of the obligations of CapitalSource Inc. and its Subsidiaries thereunder, or (ii) the deficiency amount under such repurchase agreement or series of repurchase agreements after application of collateral proceeds with respect to the sale or liquidation of the related collateral is less than $10,000,000;
(l) the Servicer fails in any material respect to comply with the Credit and Collection Policy regarding the servicing of the Collateral;
(m) the Servicer consents or agrees to, or otherwise permits to occur, any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy (after the adoption of same) in whole or in part that could be reasonably expected to have a Material Adverse Effect upon the Collateral, the Administrative Agent, any Purchaser Agent or the Secured Parties, without the prior written consent of the Administrative Agent and each Purchaser Agent;
(n) CapitalSource Finance ceases to be the Servicer; or
(eo) the Servicer shall fail fails (or fails to deliver cause the reports described related REO Asset Owner) in Section 8.1 any material respect to comply with the provisions herein relating to the servicing and administering of this Indenture and such failure shall continue for five Business Days. THENany REO Asset; then notwithstanding anything herein to the contrary, so long as any such Servicer Default shall be continuingnot have been remedied within any applicable cure period prior to the date of the Servicer Termination Notice (defined below), the Control Party Administrative Agent, by written notice then given in writing to the Servicer (with a copy to the Backup Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency ) (a “Servicer Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphAgreement.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Servicer Defaults. If any one of the following events (each, a “----------------- "Servicer Default”") shall occur and be continuing:: -----------------
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee to make such payment, transfer or deposit on or before the date occurring five days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer Agreement or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business Daysany Supplement;
(b) failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any other Transaction Document to Supplement which the Servicer is a party and such failure continues unremedied for a period of 30 days after (x) the earlier date on which 52 written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by any Control Party or (y) the date on which the Servicer has actual knowledge of such failure;
(c) any representation, warranty or certification made by the failure and Servicer in this Agreement, any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made in any material respect which inaccuracy continues unremedied for a period of 30 days after (x) the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, any Control Party or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(cy) any representation and warranty made by the Servicer in this Indenture shall prove to have been incorrect in any material respect when made and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days after the earlier of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;failure; or
(d) an Insolvency Event shall occur with respect to the Servicer or the Performance Guarantor; or
(e) the Servicer shall fail voluntarily seek, consent to deliver or acquiesce in the reports described benefit or benefits of any Debtor Relief Law or becomes a party to (or be made the subject of) any proceeding provided for under any Debtor Relief Law, other than as creditor or claimant, and in Section 8.1 the event such proceeding is involuntary, the petition instituting same is not dismissed within 60 days of its filing; or the Servicer shall assign its duties under this Indenture and such failure shall continue for five Business Days. THENAgreement, except as permitted by this Agreement; then, in the event of any Servicer Default, so long as such the Servicer Default shall be continuingnot have been remedied, the Control Party Requisite Holders by notice then given in writing to the Servicer, Servicer and the Swap Counterparty, the Issuer, the Trustee, the Insurer and Transferor (with a copy thereof to each Rating Agency Agency) and to the Trustee (a “"Termination Notice”"), may terminate all of the ------------------ rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”)Agreement and in and to the Receivables and the proceeds thereof. After receipt by the Servicer of a Termination Notice, and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until on the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraph.10.02: -------------
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Safeguard Scientifics Inc Et Al), Pooling and Servicing Agreement (Compucom Systems Inc)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (including without limitation with respect to Collections) as required by this Agreement which continues unremedied for a period of one Business Day;
(b) any failure by the Servicer to give instructions or notice to the Administrative Agent and each Purchaser Agent as required by this Agreement, or to deliver any required Monthly Report or other Required Reports hereunder on or before the date occurring two Business Days after the date such paymentinstruction, transfer notice or deposit report is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysAgreement;
(bc) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any the other Transaction Document Documents to which the Servicer is a party and such failure the same continues unremedied for a period of 30 thirty (30) days after the earlier to occur of the date on which the Servicer has actual knowledge of the failure and (i) the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Trustee, or to Administrative Agent and each Purchaser Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(cd) any representation and representation, warranty or certification made by the Servicer in this Indenture any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect in any material respect when made and made, which has a material and adverse impact Material Adverse Effect on the Trustee’s interest in Administrative Agent, any Purchaser Agent or the Pledged Loans Secured Parties and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days which continues to be unremedied for a period of thirty (30) days after the earlier to occur of the date on which the Servicer has actual knowledge of such breach and (i) the date on which written notice of such breach incorrectness requiring that such breach the same to be remedied, remedied shall have been given to the Servicer by the Trustee Administrative Agent or to any Purchaser Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(de) an Insolvency Event shall occur with respect to the Servicer;
(f) any material delegation of the Servicer’s duties that is not permitted by Section 6.1;
(g) any financial or other information reasonably requested by the Administrative Agent, any Purchaser Agent or any Purchaser is not provided as requested within a reasonable amount of time following such request;
(h) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of $10,000,000, individually or in the aggregate, and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than sixty (60) consecutive days without a stay of execution;
(i) the failure of the Servicer to make any payment due with respect to any recourse debt or other obligations, which debt or other obligations are in excess of $10,000,000, individually or in the aggregate, or the Performance Guarantoroccurrence of any event or condition that would at such time permit acceleration of such recourse debt or other obligations;
(j) CapitalSource Inc.’s Consolidated Tangible Net Worth is less than (i) $1,015,000,000 plus (ii) 70% of the cumulative Net Proceeds of Capital Stock/Conversion of Debt received at any time since December 31, 2005 (other than the period commencing on January 1, 2008 and ending on September 30, 2008) plus (iii) 30% of the cumulative Net Proceeds of Capital Stock/Conversion of Debt received at any time during the period commencing on January 1, 2008 and ending on September 30, 2008;
(k) [Reserved];
(l) the Servicer fails in any material respect to comply with the Credit and Collection Policy regarding the servicing of the Collateral;
(m) the Servicer consents or agrees to, or otherwise permits to occur, any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy (after the adoption of same) in whole or in part that could be reasonably expected to have a Material Adverse Effect upon the Collateral, the Administrative Agent, any Purchaser Agent or the Secured Parties, without the prior written consent of the Administrative Agent and each Purchaser Agent; or
(en) CSE Mortgage ceases to be the Servicer shall fail Servicer. then notwithstanding anything herein to deliver the reports described in Section 8.1 of this Indenture and such failure shall continue for five Business Days. THENcontrary, so long as any such Servicer Default shall be continuingnot have been remedied within any applicable cure period prior to the date of the Servicer Termination Notice (defined below), the Control Party Administrative Agent, by written notice then given in writing to the Servicer (with a copy to the Backup Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency ) (a “Servicer Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphAgreement.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Servicer Defaults. If any one of the following events (each, a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Deal Agent as required by this Agreement including, without limitation, while Fidelity is Servicer, any payment required to be made under the Backup Servicer and Collateral Custodian Fee Letter, or to deliver any required Monthly Report or other Required Reports hereunder on or before the date occurring two Business Days after the date such payment, transfer transfer, deposit, instruction of notice or deposit report is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysAgreement;
(b) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any other Transaction Document to the Purchase Agreement which has a material adverse effect on the Servicer is a party and such failure Purchasers, which continues unremedied for a period of 30 days after the earlier first to occur of the date on which the Servicer has actual knowledge of the failure and (i) the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Trustee, or to Deal Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(c) any representation and representation, warranty or certification made by the Servicer in this Indenture Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect in any material respect when made and made, which has a material and adverse impact effect on the Trustee’s interest in the Pledged Loans Purchasers and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within which continues to be unremedied for a period of 30 Business Days days after the earlier first to occur of the date on which the Servicer has actual knowledge of such breach and (i) the date on which written notice of such breach incorrectness requiring that such breach the same to be remedied, remedied shall have been given to the Servicer by the Trustee or to Deal Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(d) an Insolvency Event shall occur with respect to the Servicer Servicer;
(e) any material delegation of the Servicer's duties which is not permitted by Section 7.1;
(f) any financial or Asset information reasonably requested by the Deal Agent or the Performance GuarantorPurchaser as provided herein is not reasonably provided as requested;
(g) the rendering against the Servicer of a final judgment, decree or order for the payment of money in excess of U.S. $1,000,000 and the continuance of such judgment, decree or order unsatisfied and in effect for any period of 61 consecutive days without a stay of execution;
(h) the failure of the Servicer to make any payment due with respect to aggregate recourse debt or other obligations with an aggregate principal amount exceeding U.S. $1,000,000 or the occurrence of any event or condition which would permit acceleration of such recourse debt or other obligations if such event or condition has not been waived;
(i) any change in the management of the Servicer relating to the positions of President, CEO, Chairman of the Board and Executive Vice President; or
(ej) any change in the control of the Servicer shall fail which takes the form of either a merger or consolidation in which the Servicer is not the surviving entity. Notwithstanding anything herein to deliver the reports described in Section 8.1 of this Indenture and such failure shall continue for five Business Days. THENcontrary, so long as any such Servicer Default shall be continuingnot have been remedied, the Control Party Deal Agent, by written notice then given in writing to the Servicer (with a copy to the Backup Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency ) (a “"Termination Notice”"), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphAgreement.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Resource America Inc), Receivables Purchase Agreement (Fidelity Leasing Inc)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (including without limitation with respect to Collections) as required by this Agreement on or before the date such payment, transfer or deposit is required to be made or given made;
(b) any failure by the Servicer to give instructions or notice to the Administrative Agent as required by this Agreement, or to deliver any required Monthly Report or other Required Reports hereunder on or before the date occurring two Business Days after the date such instruction, notice or report is required to be made or given, as the case may be, under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysAgreement;
(bc) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any the other Transaction Document Documents to which the Servicer is a party and such failure the same continues unremedied for a period of 30 10 days after the earlier to occur of the date on which the Servicer has actual knowledge of the failure and (i) the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Trustee, or to Administrative Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(cd) any representation and representation, warranty or certification made by the Servicer in this Indenture any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect in any material respect when made made, and has a material and which (if capable of being cured without any adverse impact on the Trustee’s interest in Purchasers or the Pledged Loans and other Pledged Assets and collectibility of the Servicer is not in compliance with such representation or warranty within 30 Business Days Assets) continues to be unremedied for a period of 10 days after the earlier to occur of the date on which the Servicer has actual knowledge of such breach and (i) the date on which written notice of such breach incorrectness requiring that such breach the same to be remedied, remedied shall have been given to the Servicer by the Trustee or to Administrative Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(de) an Insolvency Event shall occur with respect to the Servicer;
(f) any material delegation of the Servicer’s duties that is not permitted by Section 6.1;
(g) any financial or other information reasonably requested by the Administrative Agent or any Purchaser is not provided as requested within a reasonable amount of time following such request;
(h) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of $10,000,000, individually or in the aggregate, and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than 60 consecutive days without a stay of execution;
(i) the failure of the Servicer to make any payment due with respect to any recourse debt or other obligations, which debt or other obligations are in excess of $10,000,000, individually or in the aggregate, or the Performance Guarantoroccurrence of any event or condition that would at such time permit acceleration of such recourse debt or other obligations;
(j) CapitalSource Inc.’s Consolidated Tangible Net Worth is less than (i) $2,000,000,000 plus (ii) 70% of the cumulative Net Proceeds of Capital Stock/Conversion of Debt received at any time after December 31, 2006;
(k) [Reserved];
(l) the Servicer fails in any material respect to comply with the Credit and Collection Policy regarding the servicing of the Collateral; or
(em) the Servicer shall fail consents or agrees to, or otherwise permits to deliver occur, any amendment, modification, change, supplement or rescission of or to the reports described Credit and Collection Policy (after the adoption of same) in Section 8.1 whole or in part that could be reasonably expected to have a Material Adverse Effect upon the Collateral, the Administrative Agent or the Secured Parties, without the prior written consent of this Indenture and such failure shall continue for five Business Daysthe Administrative Agent. THENthen notwithstanding anything herein to the contrary, so long as any such Servicer Default shall be continuingnot have been remedied within any applicable cure period prior to the date of the Servicer Termination Notice (defined below), the Control Party Administrative Agent, by written notice then given in writing to the Servicer (with a copy to the Backup Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency ) (a “Servicer Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphAgreement.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Indenture Trustee to make such payment, transfer or deposit on or before the date such payment, transfer or deposit or such instruction or notice is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture Agreement or the Indenture, and such failure remains which continues unremedied for two a period of five (5) Business Days; providedDays after the earlier of (i) the date on which notice of such failure, howeverrequiring the same to be remedied, that if shall have been given by registered or certified mail to the Servicer is unable by the Issuer or the Indenture Trustee, or to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysIssuer and the Indenture Trustee by the Required Holders and (ii) the actual knowledge of the Servicer thereof;
(b) failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any other Transaction Document to the Indenture, which failure has a material adverse effect on the Servicer is a party interests of the Noteholders (as determined by the Required Noteholders) and such failure which continues unremedied for a period of 30 sixty (60) days after the earlier of (i) the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given by registered or certified mail to the Servicer by the Issuer or the Indenture Trustee, or to the Servicer and the Indenture Trustee by the Insurer or Required Noteholders and (ii) the Holders of 25% or more actual knowledge of the Aggregate Principal Amount of the NotesServicer thereof;
(c) any representation and representation, warranty or certification made by the Servicer in this Agreement or the Indenture or in any certificate delivered pursuant to this Agreement or the Indenture shall prove to have been incorrect in any material respect when made or deemed made and such failure has a material and adverse impact effect on the Trustee’s interest in Noteholders (as determined by the Pledged Loans Required Noteholders) and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days which continues unremedied for a period of sixty (60) days after the earlier of (i) the date on which a notice specifying such incorrect representation or warranty and requiring the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach same to be remedied, shall have been given by registered or certified mail to the Servicer by the Issuer, the Issuer Loan Trustee for the benefit of the Issuer or the Indenture Trustee, or to the Servicer Servicer, the Issuer, the Issuer Loan Trustee for the benefit of the Issuer and the Indenture Trustee by the Insurer or Required Noteholders and (ii) the Holders of 25% or more actual knowledge of the Aggregate Principal Amount of the NotesServicer thereof;
(d) an Insolvency Event shall occur with respect to the Servicer or the Performance GuarantorServicer; or
(e) the Servicer or any affiliate thereof shall fail to deliver have been terminated or otherwise removed as servicer, master servicer or subservicer of any other personal loan securitization following a servicer default, master servicer default, subservicer default or similar event in connection with such other securitization; then, in the reports described in Section 8.1 event of this Indenture and such failure shall continue for five Business Days. THENany Servicer Default, so long as such a Servicer Default shall be is continuing, the Control Party Indenture Trustee may (and upon the written direction of the Required Noteholders shall), by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, Issuer Loan Trustee for the Insurer benefit of the Issuer and each Rating Agency the Back-up Servicer (a “Termination Notice”), may ) (i) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and the Indenture and (ii) direct the applicable party to terminate any power of attorney granted to the Servicer and direct such termination being herein called party to execute a “Service Transfer”)new power of attorney to the Indenture Trustee or its designee. The existence of a Servicer Default may be waived with the consent of the Required Noteholders. After receipt by the Servicer of a Termination Notice, and effective on the Trustee of such Termination Notice and subject to the terms of Section 12.2(a)Servicing Transfer Date, the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in the Successor Servicer (a “Servicing Transfer”) appointed by the Indenture Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, pursuant to Section 8.02; and, without limitation, the Indenture Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperatecooperate promptly) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsServicing Transfer. The Servicer agrees to cooperate and to cause each Subservicer to cooperate (and each Subservicer agrees to cooperate) with the Indenture Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder and (ii) transferring all duties and obligations of the Servicer hereunder to such Successor Servicer, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service and administer the Pledged Loans provided for under this IndentureAgreement, including without limitation all authority over any all Collections which shall on the date of transfer be held by the Servicer for deposit deposit, or which have been deposited by the Servicer, in a Lockbox the Collection Account or other applicable Note Account, or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer to the Successor Servicer all its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer Loans, together with all other records, correspondence and documents necessary for the continued servicing and administration of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Notwithstanding the foregoing, the Servicer shall allow be allowed to retain a copy of all records, correspondence and documents provided to the Successor Servicer access to in compliance with the Servicer’s officers and employeesrecordkeeping policies or Requirements of Law. The predecessor Servicer shall be responsible for all expenses incurred in transferring the servicing duties to the Successor Servicer. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidentialconfidential or give the Successor Servicer access to software or other intellectual property, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interest and as interests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of five (5) Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of sixty (60) days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be satisfactory in form and substance to prevented by the Successor Servicer. The Servicer hereby consents to the entry against it exercise of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance reasonable diligence by the Servicer and such delay or failure was caused by a Force Majeure Event. If, following the expiration of such incremental sixty-day grace period in the case of a delay or failure of performance described in paragraph (b) or (c) above, the applicable delay or failure of performance remains outstanding but the Servicer continues to work diligently to remedy such delay or failure of performance, then the grace period shall be extended for a further thirty (30) days upon notice from the Servicer to the Indenture Trustee. The preceding sentences shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the provisions terms of this paragraphAgreement and the Servicer shall provide the Indenture Trustee, the Issuer and the Depositor with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (OneMain Financial Holdings, Inc.), Sale and Servicing Agreement (OneMain Financial Holdings, Inc.)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by on the part of the Servicer to deliver the Receivables Activity Reports or Weekly Activity Report, if applicable required under Section 3.07(c), to make any payment, transfer or deposit, or to give instructions or to give notice to the Issuer or the Indenture Trustee to make such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysAgreement;
(b) (i) failure on the part of the Servicer duly to observe and perform its covenants to give payment instructions to Obligors pursuant to Section 3.05(f); to segregate Pool Collections pursuant to Section 3.05(g), to provide records pursuant to Section 3.07, to file financing or continuation statements provided to it pursuant to Section 3.02, or breach by the Servicer of any of its negative covenants set forth in Section 3.06, which failure or breach continues unremedied for ten calendar days, or (ii) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture or Agreement, which failure has a Material Adverse Effect on the rights of the holders of any other Transaction Document Series of Notes (determined without giving effect to which the Servicer is a any third-party credit enhancement) and such failure continues unremedied for a period of 30 days days, in each case, after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have has been given to the Servicer by the TrusteeIssuer, or to the Servicer and the Trustee by Issuer on behalf of the Insurer Majority Investors, or the Holders of 25% Servicer shall assign or more of the Aggregate Principal Amount of the Notesdelegate its duties under this Agreement except as permitted by Sections 3.01(b) and 7.02;
(c) any representation and representation, warranty or certification made by the Servicer in this Indenture shall prove Agreement or in any other Transaction Document or in any certificate delivered pursuant to this Agreement proves to have been incorrect in any material respect when made and made, which failure has a material and adverse impact Material Adverse Effect on the Trustee’s interest in rights of the Pledged Loans holders of any Series of Notes (determined without giving effect to any third-party credit enhancement) and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within which failure continues unremedied for a period of 30 Business Days days after the earlier of the date on which notice thereof, requiring the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach same to be remedied, shall have has been given to the Servicer by the Trustee Issuer, or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more Issuer on behalf of the Aggregate Principal Amount of the Notes;Majority Investors; or
(d) an Insolvency Event shall occur of Bankruptcy occurs with respect to the Servicer;
(e) the Performance Guaranty shall cease to be in full force and effect for any reason other than in accordance with its terms; or
(f) (i) Failure of the Servicer or the Performance Guarantor; or
(e) Guarantor to pay any principal and/or interest in respect of any Indebtedness under the Servicer shall fail to deliver Realogy Credit Agreement or under any other indenture or agreement governing any Indebtedness the reports described in Section 8.1 principal amount of this Indenture which exceeds $25,000,000 and such failure shall continue for five Business Days. THENbeyond the applicable grace period, if any, specified in the agreement or instrument governing such Indebtedness; or (ii) the default by the Servicer or the Performance Guarantor in the performance of any term, provision or condition contained in any agreement described in clause (i) above, or the existence of any event or condition with respect to any Indebtedness arising under any such agreement, if the effect of such default, event or condition is to cause, or permit the holder of such Indebtedness to cause, such Indebtedness to become due prior to its stated maturity, including without limitation the occurrence of any “Event of Default” under the Realogy Credit Agreement; or (iii) any Indebtedness of the Servicer or the Performance Guarantor in a principal amount exceeding $25,000,000 shall be declared to be due and payable or is required to be prepaid (other than by a regularly scheduled payment or a mandatory redemption or prepayment provision) prior to the scheduled date of maturity thereof; then, in the event of any such Servicer Default, so long as such the Servicer Default shall be continuingnot have been remedied the Indenture Trustee may, or at the direction of the Majority Investors, the Control Party Indenture Trustee shall, by written notice then given in writing to the Servicer, Servicer (and to the Swap Counterparty, Indenture Trustee if given by the Issuer, the Trustee, the Insurer and each Rating Agency Majority Investors) (a “Termination Notice”), may terminate all or any part of the rights and obligations of the Servicer as Servicer under this Indenture Agreement. Notwithstanding the foregoing, a delay in or failure of performance referred to in clause (a), (b) or (c) for a period of 10 Business Days after the applicable grace period shall not constitute a Servicer Default if such termination being herein called delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes not within the Servicer’s control. The preceding sentence does not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a “Service Transfer”). timely manner in accordance with the terms of this Agreement; or After receipt by the Servicer of a Termination Notice, and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 12.2 and 9.03, all authority and power of the Servicer under this Indenture Agreement (or, in the case of a partial transfer, such authority and power and a proportional portion of the Servicing Fee as is described in the Termination Notice) shall pass to and be vested in the Successor Servicer (a “Service Transfer”); and the Indenture Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (empowered, upon the failure of the Servicer to cooperate) , to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans Pool Receivables provided for under this IndentureAgreement, including without limitation (to the extent transferred) all authority over any all Pool Collections which shall that on the date of transfer be are held by the Servicer for deposit in a Lockbox Account deposit, or which shall thereafter be received have been deposited by the Servicer in the Collection Account, or which thereafter are received with respect to the Pledged LoansReceivables, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly within 20 Business Days of such Termination Notice transfer its electronic records relating to the Pledged Loans Pool Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans Receivables in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require 9.01 requires the Servicer to disclose to the Successor Servicer information of any kind which that the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem deems reasonably necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicerinterests. The Servicer hereby consents being terminated (or replaced in part) shall bear all costs of the appointment of a Successor Servicer hereunder, including but not limited to those of the entry against it Indenture Trustee reasonably allocable to specific employees and overhead, legal fees and expenses, accounting and financial consulting fees and expenses, and costs of an order for preliminaryamending the Transaction Documents, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphif necessary.
Appears in 2 contracts
Samples: Omnibus Amendment (NRT Settlement Services of Missouri LLC), Omnibus Amendment (Realogy Corp)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (including without limitation with respect to Collections) as required by this Agreement which continues unremedied for a period of one Business Day;
(b) any failure by the Servicer to give instructions or notice to the Administrative Agent and each Purchaser Agent as required by this Agreement, or to deliver any required Monthly Report or other Required Reports hereunder on or before the date occurring two Business Days after the date such paymentinstruction, transfer notice or deposit report is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysAgreement;
(bc) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any the other Transaction Document Documents to which the Servicer is a party and such failure the same continues unremedied for a period of 30 thirty (30) days after the earlier to occur of the date on which the Servicer has actual knowledge of the failure and (i) the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Trustee, or to Administrative Agent and each Purchaser Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(cd) any representation and representation, warranty or certification made by the Servicer in this Indenture any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect in any material respect when made and made, which has a material and adverse impact Material Adverse Effect on the Trustee’s interest in Administrative Agent, any Purchaser Agent or the Pledged Loans Secured Parties and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days which continues to be unremedied for a period of thirty (30) days after the earlier to occur of the date on which the Servicer has actual knowledge of such breach and (i) the date on which written notice of such breach incorrectness requiring that such breach the same to be remedied, remedied shall have been given to the Servicer by the Trustee Administrative Agent or to any Purchaser Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(de) an Insolvency Event shall occur with respect to the Servicer;
(f) any material delegation of the Servicer’s duties that is not permitted by Section 6.1;
(g) any financial or other information reasonably requested by the Administrative Agent, any Purchaser Agent or any Purchaser is not provided as requested within a reasonable amount of time following such request;
(h) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of $10,000,000, individually or in the aggregate, and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than sixty (60) consecutive days without a stay of execution;
(i) the failure of the Servicer to make any payment due with respect to any recourse debt or other obligations, which debt or other obligations are in excess of $10,000,000, individually or in the aggregate, or the Performance Guarantoroccurrence of any event or condition that would at such time permit acceleration of such recourse debt or other obligations;
(j) CapitalSource Inc.’s Consolidated Tangible Net Worth is less than (i) $1,015,000,000, plus (ii) 70% of the cumulative Net Proceeds of Capital Stock/Conversion of Debt received at any time since December 31, 2005 (other than the period commencing on January 1, 2008 and ending on September 30, 2008), plus (iii) 30% of the cumulative Net Proceeds of Capital Stock/Conversion of Debt received at any time during the period commencing on January 1, 2008 and ending on September 30, 2008;
(k) [Reserved];
(l) the Servicer fails in any material respect to comply with the Credit and Collection Policy regarding the servicing of the Collateral;
(m) the Servicer consents or agrees to, or otherwise permits to occur, any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy (after the adoption of same) in whole or in part that could be reasonably expected to have a Material Adverse Effect upon the Collateral, the Administrative Agent, any Purchaser Agent or the Secured Parties, without the prior written consent of the Administrative Agent and each Purchaser Agent; or
(en) CapitalSource Finance ceases to be the Servicer shall fail Servicer; then notwithstanding anything herein to deliver the reports described in Section 8.1 of this Indenture and such failure shall continue for five Business Days. THENcontrary, so long as any such Servicer Default shall be continuingnot have been remedied within any applicable cure period prior to the date of the Servicer Termination Notice (defined below), the Control Party Administrative Agent, by written notice then given in writing to the Servicer (with a copy to the Backup Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency ) (a “Servicer Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphAgreement.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuingoccur:
(ai) any failure by the Servicer Servicer: (x) to make deposit to the Collection Account (A) any payment, transfer or deposit on or before the date such payment, transfer or deposit is amount required to be made or given deposited therein by the Servicer under the terms of this Indenture and (other than any such failure remains unremedied for two Business Days; provided, however, that if resulting from an administrative or technical error of the Servicer is unable to make a paymentin the amount so deposited); or (B) within one (1) Business Day after the Servicer becomes aware that, transfer or deposit when due and such failure is as a result of circumstances beyond an administrative or technical error of the Servicer, any amount previously deposited by the Servicer to the Collection Account was less than the amount required to be deposited therein by the Servicer, the amount of such shortfall; or (y) to deliver to the Trust Collateral Agent the Servicer’s control, Certificate on the grace period shall be extended to five Business Daysrelated Determination Date;
(bii) failure on the part of the Servicer duly to observe or to perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture any Basic Document, or any other Transaction Document to which representation or warranty of the Servicer is a party and such failure continues made in this Agreement, any other Basic Document or in any certificate or other writing delivered pursuant to any Basic Document proving to have been incorrect in any material respect as of the time when the same shall have been made, which default, if capable of cure, shall continue unremedied for a period of 30 thirty (30) days after (or a longer period, not in excess of sixty (60) days, as may be reasonably necessary to remedy such default, if the earlier default is capable of the date on which remedy within sixty (60) days or less and the Servicer delivers an Officer’s Certificate to the Indenture Trustee to the effect that it has actual knowledge of commenced, or will promptly commence and diligently pursue, all reasonable efforts to remedy the failure and the date on which default) after (x) there shall have been given written notice of such failure, requiring the same to be remedied, shall have been given (1) to the Servicer, by the Trust Collateral Agent, or (2) to the Servicer by the TrusteeTrust Collateral Agent at the direction of the Majority Noteholders; or (y) discovery of such failure by an officer of the Servicer; or
(iii) the entry of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, receiver, or to liquidator for the Servicer or any of its subsidiaries in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings, or for the winding up or liquidation of its respective affairs, and the Trustee by the Insurer continuance of any such decree or order unstayed and in effect for a period of sixty (60) consecutive days or the Holders entry of 25% any decree or more order for relief in respect of the Aggregate Principal Amount Servicer or any of the Notes;its subsidiaries under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, or similar law, whether now or hereafter in effect, which decree or order for relief continues unstayed and in effect for a period of sixty (60) consecutive days; or
(civ) any representation and warranty made the consent by the Servicer in this Indenture shall prove or any of its subsidiaries to have been incorrect the appointment of a conservator or receiver or liquidator in any material respect when made insolvency, readjustment of debt, marshalling of assets and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation liabilities, or warranty within 30 Business Days after the earlier similar proceedings of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(d) an Insolvency Event shall occur with respect relating to the Servicer or any of its subsidiaries or relating to substantially all of its property; or the Performance Guarantoradmission by the Servicer or any of its subsidiaries in writing of its inability to pay its debts generally as they become due, the filing by the Servicer or any of its subsidiaries of a petition to take advantage of any applicable insolvency or reorganization statute, the making by the Servicer or any of its subsidiaries of an assignment for the benefit of its creditors, or the voluntarily suspension by the Servicer or any of its subsidiaries of payment of its obligations;
(v) the Servicer breaches any Financial Covenants; or
(evi) the Servicer shall fail Originator or Servicer, if Credit Acceptance is the Servicer, fails to deliver the reports described pay when due Purchase Amounts in Section 8.1 excess of this Indenture $100,000; then, and such failure shall continue for five Business Days. THEN, so long as such Servicer Default shall be continuingin each and every case, the Control Party Trust Collateral Agent, if so requested by the Majority Noteholders by notice then given in writing to the Servicer, the Swap Counterparty, Backup Servicer and the Issuer, the Trustee, the Insurer and each Rating Agency (a “Termination Notice”)Trust Collateral Agent, may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. Upon sending or receiving any such notice, the Trust Collateral Agent shall promptly send a copy thereof to the Indenture Trustee, the Owner Trustee, the Servicer (who shall promptly provide such termination being herein called a “Service Transfer”)notice to the Rating Agencies) and to each Noteholder. After Within thirty (30) days after the receipt by the Backup Servicer and the Trustee of such Termination Notice written notice (if such notice relates to terminating the Servicer) and subject to the terms of Section 12.2(a8.02(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall Agreement, whether with respect to the Notes or the Loans or Contracts or otherwise, shall, without further action, pass to and be vested in the Trustee Backup Servicer or such Successor Servicer, successor Servicer as may be appointed under Section 8.02; and the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) Backup Servicer is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicerpredecessor servicer, as attorney-in-fact or otherwise, any and all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of servicing rightsthe Loans and the Contracts and related documents, or otherwise. The predecessor Servicer agrees to shall cooperate with the Trustee successor Servicer and such Successor the Backup Servicer in effecting the termination of the responsibilities and rights of the predecessor Servicer to conduct servicing hereunderunder this Agreement, including without limitation the transfer to such Successor the Backup Servicer or the successor Servicer for administration by it of all authority of cash amounts that shall at the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer time be held by the Servicer predecessor servicer for deposit in a Lockbox Account deposit, or which shall thereafter be received by the Servicer with respect to the Pledged Loansa Loan or related Contract, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing related accounts and records maintained by the Successor Servicer’s personnel access . All Transition Expenses shall be paid by the predecessor servicer upon presentation of reasonable documentation of such costs and expenses. If such Transition Expenses are not paid to the successor Servicer by the predecessor Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at , such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer Transition Expenses shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphpaid under Section 5.08(a)(i) hereof.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Credit Acceptance Corp), Sale and Servicing Agreement (Credit Acceptance Corp)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by on the part of the Servicer to make any payment, transfer or deposit, or to give instructions or to give notice to the Issuer or the Trustee to make such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysAgreement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture or any other Transaction Document to Agreement, which failure has a Material Adverse Effect on the Servicer is a party rights of the Noteholders and such failure continues unremedied for a period of 30 days 60 days, in each case, after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have has been given to the Servicer by the TrusteeIssuer, or to the Servicer and the Trustee by Issuer on behalf of the Insurer Purchaser, or the Holders of 25% Servicer shall assign or more of the Aggregate Principal Amount of the Notesdelegate its duties under this Agreement except as permitted by Sections 3.01(b) and 7.02;
(c) any representation and representation, warranty or certification made by the Servicer in this Indenture shall prove Agreement or in any other Transaction Document or in any certificate delivered pursuant to this Agreement proves to have been incorrect in any material respect when made and made, which failure has a material and adverse impact Material Adverse Effect on the Trustee’s interest in rights of the Pledged Loans Noteholders and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days which failure continues unremedied for a period of 60 days after the earlier of the date on which notice thereof, requiring the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach same to be remedied, shall have has been given to the Servicer by the Trustee Issuer, or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more Issuer on behalf of the Aggregate Principal Amount of the NotesPurchaser;
(d) an Insolvency Event shall occur of Bankruptcy occurs with respect to the Servicer or the Performance GuarantorServicer; or
(e) an Amortization Event occurs; then, in the event of any such Servicer shall fail to deliver the reports described in Section 8.1 of this Indenture and such failure shall continue for five Business Days. THENDefault, so long as such the Servicer Default shall be continuingnot have been remedied, the Control Party Trustee may, or at the direction of the Majority Investors the Trustee shall, by written notice then given in writing to the Servicer, Servicer (and to the Swap Counterparty, Trustee if given by the Issuer, the Trustee, the Insurer and each Rating Agency Majority Investors) (a “Termination Notice”), may terminate all or any part of the rights and obligations of the Servicer as Servicer under this Indenture Agreement. Notwithstanding the foregoing, a delay in or failure of performance referred to in clause (a), (b) or (c) for a period of 10 Business Days after the applicable grace period shall not constitute a Servicer Default if such termination being herein called delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war or terrorism, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes not within the Servicer’s control. The preceding sentence does not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a “Service Transfer”)timely manner in accordance with the terms of this Agreement. After receipt by the Servicer of a Termination Notice, and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until on the date that a Successor Servicer shall have been is appointed by the Trustee pursuant to Section 12.2 and 9.03, all authority and power of the Servicer under this Indenture Agreement (or, in the case of a partial transfer, such authority and power and a proportional portion of the Servicing Fee as is described in the Termination Notice) shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, Servicer (a “Service Transfer”); and the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (empowered, upon the failure of the Servicer to cooperate) , to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans Pool Receivables and Fee Receivables provided for under this IndentureAgreement, including without limitation (to the extent transferred) all authority over any all Pool Collections which shall and Fee Collections that on the date of transfer be are held by the Servicer for deposit in a Lockbox Account deposit, or which shall thereafter be received have been deposited by the Servicer in the Collection Account, or which thereafter are received with respect to the Pledged LoansReceivables, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly within 30 Business Days of such Termination Notice transfer its electronic records relating to the Pledged Loans Pool Receivables and Fee Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans Receivables in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require 9.01 requires the Servicer to disclose to the Successor Servicer information of any kind which that the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem deems reasonably necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicerinterests. The Servicer hereby consents being terminated (or replaced in part) shall bear all costs of the appointment of a Successor Servicer hereunder, including but not limited to those of the entry against it Trustee reasonably allocable to specific employees and overhead, legal fees and expenses, accounting and financial consulting fees and expenses, and costs of an order for preliminaryamending the Transaction Documents, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphif necessary.
Appears in 2 contracts
Samples: Servicing Agreement, Servicing Agreement (NRT Settlement Services of Missouri LLC)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any required payment, transfer or deposit or to give instructions or notice to the Indenture Trustee to make or cause to be made such payment, transfer or deposit on or before the date such payment, transfer or deposit or such instruction or notice is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture Agreement, the Indenture, the 2024-1A SUBI Supplement, or the 2024-1A SUBI Servicing Agreement, in an aggregate amount exceeding $50,000, and such which failure remains continues unremedied for two a period of five (5) Business Days; providedDays after the earlier of (i) the date on which notice of such failure, howeverrequiring the same to be remedied, that if shall have been given by registered or certified mail to the Servicer is unable by the Issuer or the Indenture Trustee, or to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysIssuer and the Indenture Trustee by the Required Noteholders and (ii) the actual knowledge of the Servicer thereof;
(b) any failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture Agreement, the Indenture, the 2024-1A SUBI Supplement or the 2024-1A SUBI Servicing Agreement or in any other Transaction Document to which certificate delivered by the Servicer is pursuant to this Agreement, the 2024-1A SUBI Supplement, the 2024-1A SUBI Servicing Agreement or the Indenture, which failure has a party material adverse effect on the interests of the Noteholders (as determined by the Threshold Noteholders) and such failure which continues unremedied for a period of 30 forty-five (45) days after the earlier of (i) the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given by registered or certified mail to the Servicer by the Issuer or the Indenture Trustee, or to the Servicer Servicer, the Issuer and the Indenture Trustee by the Insurer or Threshold Noteholders and (ii) the Holders of 25% or more actual knowledge of the Aggregate Principal Amount of the NotesServicer thereof;
(c) any representation and representation, warranty or certification made by the Servicer in this Indenture Agreement, the Indenture, the 2024-1A SUBI Supplement or the 2024-1A SUBI Servicing Agreement or in any certificate delivered by the Servicer pursuant to this Agreement, the Indenture, the 2024-1A SUBI Supplement or the 2024-1A SUBI Servicing Agreement shall prove to have been incorrect in any material respect when made or deemed made and such failure has a material and adverse impact effect on the Trustee’s interest in Noteholders (as determined by the Pledged Loans Threshold Noteholders) and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days which continues unremedied for a period of forty-five (45) days after the earlier of (i) the date on which a notice specifying such incorrect representation or warranty and requiring the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach same to be remedied, shall have been given by registered or certified mail to the Servicer by the Trustee Issuer or the Indenture Trustee, or to the Servicer Servicer, the Issuer, and the Indenture Trustee by the Insurer or Threshold Noteholders and (ii) the Holders of 25% or more actual knowledge of the Aggregate Principal Amount of the Notes;Servicer thereof; or
(d) an Insolvency Event shall occur with respect to the Servicer; then, in the event of any Servicer or the Performance Guarantor; or
(e) the Servicer shall fail to deliver the reports described in Section 8.1 of this Indenture and such failure shall continue for five Business Days. THENDefault, so long as such a Servicer Default shall be is continuing, the Control Party Indenture Trustee may (and upon the written direction of the Required Noteholders shall), by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, North Carolina Trust and the Insurer and each Rating Agency Back-up Servicer (a “Termination Notice”), may ) (i) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement, the 2024-1A SUBI Supplement, the 2024-1A SUBI Servicing Agreement and the Indenture and (ii) direct the applicable party to terminate any power of attorney granted to the Servicer or any Subservicer and direct such termination being herein called party to execute a “Service Transfer”)new power of attorney to the Indenture Trustee or its designee. The existence of a Servicer Default may be waived with the consent of the Required Noteholders. Notwithstanding the foregoing, a delay in or failure of performance referred to under paragraph (a) above for an additional period of five (5) Business Days after the applicable grace period or referred to under paragraph (b) or (c) above for a period of forty-five (45) days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by a Force Majeure Event. If, following the expiration of such incremental forty-five (45) day grace period in the case of a delay or failure of performance described in paragraph (b) or (c) above, the applicable delay or failure of performance remains outstanding but the Servicer continues to work diligently to remedy such delay or failure of performance, then the grace period shall be extended for a further thirty (30) days upon notice from the Servicer to the Indenture Trustee. The preceding sentences will not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Issuer and the Depositor with an Officer’s Certificate giving prompt notice of such failure or delay, together with a description of its efforts so to perform its obligations. After receipt by the Servicer of a Termination Notice, and effective on the Trustee of such Termination Notice and subject to the terms of Section 12.2(a)Servicing Transfer Date, the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in the Successor Servicer (a “Servicing Transfer”) appointed by the Indenture Trustee (at the written direction of the Required Noteholders if the Successor Servicer is not the Back-up Servicer or such Successor Servicer, as the case may be, without further action on the part of any Person, Indenture Trustee) pursuant to Section 8.02; and, without limitation, the Indenture Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperatecooperate promptly) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsServicing Transfer. The Servicer agrees to reasonably cooperate and to cause each Subservicer to reasonably cooperate (and each Subservicer agrees to cooperate) with the Indenture Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder and (ii) transferring all duties and obligations of the Servicer hereunder to such Successor Servicer, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service and administer the Pledged Loans provided for under this IndentureAgreement, including without limitation all authority over any all Collections which shall on the date of transfer be held by the Servicer for deposit deposit, or which have been deposited by the Servicer, in a Lockbox the Collection Account or other applicable Note Account, or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer to the Successor Servicer all its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer Loans, together with all other records, correspondence and documents necessary for the continued servicing and administration of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Notwithstanding the foregoing, the Servicer shall allow be allowed to retain a copy of all records, correspondence and documents provided to the Successor Servicer access to in compliance with the Servicer’s officers and employeesrecordkeeping policies or Requirements of Law. The predecessor Servicer shall be responsible for all expenses incurred in transferring the servicing duties to the Successor Servicer. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidentialconfidential or give the Successor Servicer access to software or other intellectual property, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphinterests.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Regional Management Corp.), Sale and Servicing Agreement (Regional Management Corp.)
Servicer Defaults. If any one For purposes of this Agreement, each of the following events (each, shall constitute a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make deposit any required distribution, payment, transfer or deposit on into any COLT 20 -SN Account (including, with respect to Ally Financial as Servicer, to obtain and deposit Pull Ahead Payments under Section 2.02(b), and, with respect to any successor Servicer, to deposit such amounts, if obtained, pursuant to Section 2.02(b)) or before to direct the date such paymentCOLT Indenture Trustee to make any required distributions from any COLT 20 -SN Account, transfer or deposit which failure continues unremedied for a period of five Business Days after (x) written notice thereof is required to be made or given received by the Servicer under the terms or (y) discovery of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result by an officer of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business Days;
(b) any failure on the part of the Servicer to duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement or in any other Transaction Document to COLT 20 -SN Basic Document, which failure (i) materially and adversely affects the Servicer is a party rights of the COLT 20 -SN Secured Noteholder, and such failure (ii) continues unremedied for a period of 30 90 days after the earlier of the date on which the Servicer has actual knowledge of the failure and (x) the date on which written notice of such failure, requiring the same to be remedied, failure shall have been given to the Servicer or (y) discovery of such failure by the Trustee, or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more an officer of the Aggregate Principal Amount of the NotesServicer;
(c) any representation and warranty made the entry of a decree or order by a court or agency or supervisory authority having jurisdiction in the Servicer in this Indenture shall prove to have been incorrect premises for the appointment of a conservator, receiver or liquidator for the Servicer, in any material respect when made insolvency, readjustment of debt, marshalling of assets and has a material and adverse impact on liabilities or similar proceedings, or for the Trustee’s interest in the Pledged Loans and other Pledged Assets winding up or liquidation of their respective affairs, and the Servicer is not continuance of any such decree or order unstayed and in compliance with such representation or warranty within 30 Business Days after the earlier effect for a period of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;90 consecutive days; or
(d) an Insolvency Event shall occur with respect the consent by the Servicer to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings of or relating to the Servicer or the Performance Guarantorof or relating to substantially all of its property; or
(e) or the Servicer shall fail admit in writing its inability to deliver 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 reports described benefit of its creditors or voluntarily suspend payment of its obligations. Notwithstanding the foregoing, there shall be no Servicer Default where a Servicer Default would otherwise exist under clause (a) above for a period of ten Business Days or under clause (b) for a period of 60 days if the delay or failure giving rise to the default was caused by an act of God or other similar occurrence. Upon the occurrence of any of those events, the Servicer shall not be relieved from using its best efforts to perform its obligations in Section 8.1 a timely manner in accordance with the terms of this Agreement and the COLT Sale and Contribution Agreement and the Servicer shall provide the COLT Indenture and such failure shall continue for five Business Days. THEN, so long as such Servicer Default shall be continuing, the Control Party by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer COLT Owner Trustee, COLT, LLC and each Rating Agency (a “Termination Notice”)the CARAT Indenture Trustee, may terminate all as holder of the rights and obligations COLT 20 -SN Secured Notes, prompt notice of the Servicer as Servicer under this Indenture (such termination being herein called that failure or delay by it, together with a “Service Transfer”). After receipt by the Servicer and the Trustee description of such Termination Notice and subject its efforts to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer so perform its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphobligations.
Appears in 2 contracts
Samples: Servicing Agreement (Central Originating Lease Trust), Servicing Agreement (Central Originating Lease Trust)
Servicer Defaults. If The existence of any one of the following events (each, shall constitute a “Servicer Default”) shall occur and be continuing” under this Agreement:
(a) any failure by the Servicer to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made or given by the Servicer under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business Days;
(b) failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture or any other Transaction Document to which the Servicer is a party and such failure continues unremedied for a period of 30 days after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(c) any representation and warranty made by the Servicer in this Indenture shall prove to have been incorrect in any material respect when made and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days after the earlier of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(d) an Insolvency Event shall occur with respect to the Servicer or the Performance Guarantor; or
(e) the Servicer shall fail to deliver any report or certificate (including a Servicing Report) required to be delivered by it under this Agreement within five New York Business Days of the reports described due date thereof;
(b) any representation, warranty or certification made by the Servicer in Section 8.1 this Agreement or in any document delivered pursuant hereto shall prove to have been untrue or incorrect in any respect as of the time it was made (or deemed made) and such untruth or incorrect statement (or the actual circumstances that caused such statement to be untrue or incorrect), alone or in the aggregate, is reasonably likely to have a Material Adverse Effect on the Collateral (including the volume and/or collectibility of the Purchased Diversified Payment Rights), the ability of the Servicer to perform its obligations under the Transaction Documents to which it is a party, the validity or enforceability against it of any of the Transaction Documents to which it is a party or otherwise on the rights of any Enhancer;
(c) except for payment, monetary transfer or deposit obligations, the Servicer shall fail to perform or observe any agreement or covenant contained in this Agreement, which failure: (i) is reasonably likely to have a Material Adverse Effect and (ii) shall continue for at least 30 days following the earlier of: (A) an Authorized Officer of the Servicer obtaining Actual Knowledge of such failure and (B) the delivery to the Servicer of written notice of such failure by the SPC, the Indenture Trustee, any Enhancer or any Investor;
(d) the Servicer shall have failed to make any payment, monetary transfer or deposit required to be made by it under this Agreement and such failure shall continue have continued unremedied for five at least one New York Business Days. THENDay after the date such payment, so long monetary transfer or deposit is due; or
(i) the Servicer (either individually or as such Servicer Default shall be continuing, the Control Party by notice then given in writing to the Servicer) shall commence a voluntary case, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency proceeding or other action: (a “Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer A) under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part any Applicable Law of any Personjurisdiction, anddomestic or foreign, without limitationrelating to bankruptcy, the Trustee at the direction intervention, insolvency, reorganization, suspension of the Control Party (which authorization is coupled with payments or relief of debtors seeking to have an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided order for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer relief entered with respect to it or seeking to adjudicate it bankrupt or insolvent or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, liquidator, custodian, conservator or other similar official of it or for any substantial part of its property, (ii) an involuntary case, proceeding or other action of a nature referred to in subclause (i) shall be commenced against the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to (either individually or as the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer ) that: (A) shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans result in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminaryrelief or any such adjudication or appointment or (B) shall remain undismissed, temporary undischarged, unstayed or permanent injunctive relief by any court unbonded for a period of competent jurisdictionat least 60 days, to ensure compliance by (iii) an involuntary case, proceeding or other action shall be commenced against the Servicer with (either individually or as the provisions Servicer) that seeks issuance of this paragrapha warrant of attachment, execution, distraint or similar process against any substantial part of its assets that shall result in the entry of an order for any such relief and shall not have been vacated, discharged, stayed or bonded pending appeal within 60 days from the entry thereof, (iv) the Servicer (either individually or as the Servicer) shall become subject to intervention proceedings under any applicable bank regulatory or insolvency laws or rules of Jamaica or the United States (including any political subdivision thereof), (v) the Servicer shall admit in writing its inability to pay its debts as they become due or (vi) the Servicer shall make a general assignment for the benefit of its creditors.
Appears in 2 contracts
Samples: Servicing Agreement, Servicing Agreement (National Commercial Bank Jamaica LTD)
Servicer Defaults. If The occurrence of any one or more of the following events (each, shall constitute a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer shall fail to make instruct the Securities Intermediary to remit to the Agent on any payment, transfer or deposit on or before the date such payment, transfer or deposit is day any amount required to be made remitted to the Agent on such day in respect of Yield, Net Swap Amounts, Facility Fees or given by the Servicer under the terms of this Indenture Capital and such failure remains unremedied shall continue for two three (3) Business Days; provided, however, that if Days after the Servicer is unable to make a payment, transfer or deposit date when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business Daysamounts became due;
(b) the Servicer shall fail to deposit, or fail to pay, or fail to cause to be deposited or paid when due any other amount due hereunder, and any such failure shall continue for five (5) Business Days after the earlier of the date on which it has actual knowledge thereof or the date on which it has received written notice thereof by the Agent to the Servicer;
(c) failure on the part of the Seller or the Servicer to duly to observe or perform any other covenants or agreements of the Seller or the Servicer set forth in the Sale Agreement, this Indenture Agreement, or any of the other Transaction Document to Documents, which the Servicer is a party and such failure continues unremedied for a period of 30 thirty (30) days after the earlier of the date on which the Servicer has actual knowledge of the failure and thereof or the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer Seller or the Servicer, as applicable, by the Trustee, or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the NotesAgent;
(cd) any representation and warranty representation, warranty, certification or statement made by the Servicer under this Agreement or in any agreement, certificate, report, appendix, schedule or document furnished by the Seller or Servicer to the Agent pursuant to or in connection with this Indenture Agreement shall prove to have been incorrect false or misleading in any material respect when made and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days after the earlier as of the date on which the Servicer has actual knowledge time made or deemed made (including by omission of material information necessary to make such breach and the date on which written notice of such breach requiring that such breach be remediedrepresentation, shall have been given to the Servicer by the Trustee warranty, certification or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesstatement not misleading);
(d) an Insolvency Event shall occur with respect to the Servicer or the Performance Guarantor; or
(e) the Servicer shall fail to deliver entry of a decree or order by a court or agency or supervisory authority having jurisdiction in the reports described in Section 8.1 premises for the appointment of this Indenture and such failure shall continue a conservator, receiver or liquidator for five Business Days. THEN, so long as such Servicer Default shall be continuing, the Control Party by notice then given in writing to Seller or the Servicer, in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the Swap Counterpartywinding up or liquidation of their respective affairs, and the Issuercontinuance of any such decree or order unstayed and in effect for a period of 60 consecutive days;
(f) the consent by the Seller or the Servicer to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities, or similar proceedings of or relating to the Trustee, Seller or the Insurer and each Rating Agency (a “Termination Notice”), may terminate Servicer or of or relating to substantially all of their respective property; or the rights and obligations Seller or the 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; or
(g) a default by the Servicer in the performance of any term, provision or condition contained in any agreement under which any indebtedness of the Servicer in excess of $10 million was created or is governed, the effect of which is to cause any such indebtedness to become due prior to its stated maturity; or any such indebtedness shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment or as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by result of the Servicer and voluntary sale or transfer of the Trustee of such Termination Notice and subject property or assets) prior to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the stated maturity date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphthereof.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Navistar Financial Retail Receivables Corp), Receivables Purchase Agreement (Navistar Financial Corp)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuingoccur:
(ai) any failure by the Servicer Servicer: (x) to make deposit to the Collection Account (A) any payment, transfer or deposit on or before the date such payment, transfer or deposit is amount required to be made or given deposited therein by the Servicer under the terms of this Indenture and (other than any such failure remains unremedied for two Business Days; provided, however, that if resulting from an administrative or technical error of the Servicer is unable to make a paymentin the amount so deposited); or (B) within one (1) Business Day after the Servicer becomes aware that, transfer or deposit when due and such failure is as a result of circumstances beyond an administrative or technical error of the Servicer, any amount previously deposited by the Servicer to the Collection Account was less than the amount required to be deposited therein by the Servicer, the amount of such shortfall; or (y) to deliver to the Trust Collateral Agent the Servicer’s control, Certificate on the grace period shall be extended to five Business Daysrelated Determination Date;
(bii) failure on the part of the Servicer duly to observe or to perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture any Basic Document, or any other Transaction Document to which representation or warranty of the Servicer is a party and such failure continues made in this Agreement, any other Basic Document or in any certificate or other writing delivered pursuant to any Basic Document proving to have been incorrect in any material respect as of the time when the same shall have been made, which default, if capable of cure, shall continue unremedied for a period of 30 thirty (30) days after (or a longer period, not in excess of sixty (60) days, as may be reasonably necessary to remedy such default, if the earlier default is capable of the date on which remedy within sixty (60) days or less and the Servicer delivers an Officer’s Certificate to the Indenture Trustee to the effect that it has actual knowledge of commenced, or will promptly commence and diligently pursue, all reasonable efforts to remedy the failure and the date on which default) after (x) there shall have been given written notice of such failure, requiring the same to be remedied, shall have been given (1) to the Servicer, by the Trust Collateral Agent, or (2) to the Servicer by the TrusteeTrust Collateral Agent at the direction of the Majority Noteholders; or (y) discovery of such failure by an officer of the Servicer; or
(iii) the entry of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, receiver, or to liquidator for the Servicer or any of its subsidiaries in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings, or for the winding up or liquidation of its respective affairs, and the Trustee by the Insurer continuance of any such decree or order unstayed and in effect for a period of sixty (60) consecutive days or the Holders entry of 25% any decree or more order for relief in respect of the Aggregate Principal Amount Servicer or any of the Notes;its subsidiaries under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, or similar law, whether now or hereafter in effect, which decree or order for relief continues unstayed and in effect for a period of sixty (60) consecutive days; or
(civ) any representation and warranty made the consent by the Servicer in this Indenture shall prove or any of its subsidiaries to have been incorrect the appointment of a conservator or receiver or liquidator in any material respect when made insolvency, readjustment of debt, marshalling of assets and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation liabilities, or warranty within 30 Business Days after the earlier similar proceedings of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(d) an Insolvency Event shall occur with respect relating to the Servicer or any of its subsidiaries or relating to substantially all of its property; or the Performance Guarantoradmission by the Servicer or any of its subsidiaries in writing of its inability to pay its debts generally as they become due, the filing by the Servicer or any of its subsidiaries of a petition to take advantage of any applicable insolvency or reorganization statute, the making by the Servicer or any of its subsidiaries of an assignment for the benefit of its creditors, or the voluntarily suspension by the Servicer or any of its subsidiaries of payment of its obligations; or
(ev) if Credit Acceptance is the Servicer, the Servicer breaches any Financial Covenants; or
(vi) the Servicer shall fail Originator or Servicer, if Credit Acceptance is the Servicer, fails to deliver the reports described pay when due Purchase Amounts in Section 8.1 excess of this Indenture $100,000; then, and such failure shall continue for five Business Days. THEN, so long as such Servicer Default shall be continuingin each and every case, the Control Party Trust Collateral Agent, if so requested by the Majority Noteholders by notice then given in writing to the Servicer, the Swap Counterparty, Backup Servicer and the Issuer, the Trustee, the Insurer and each Rating Agency (a “Termination Notice”)Trust Collateral Agent, may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. Upon sending or receiving any such notice, the Trust Collateral Agent shall promptly send a copy thereof to the Indenture Trustee, the Owner Trustee, the Servicer (who shall promptly provide such termination being herein called a “Service Transfer”)notice to the Rating Agencies) and to each Noteholder. After Within thirty (30) days after the receipt by the Backup Servicer and the Trustee of such Termination Notice written notice (if such notice relates to terminating the Servicer) and subject to the terms of Section 12.2(a8.02(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall Agreement, whether with respect to the Notes or the Loans or Contracts or otherwise, shall, without further action, pass to and be vested in the Trustee Backup Servicer or such Successor Servicer, successor Servicer as may be appointed under Section 8.02; and the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) Backup Servicer is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicerpredecessor servicer, as attorney-in-fact or otherwise, any and all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and or accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer notice of servicing rightstermination, whether to complete the conveyance and endorsement of the Loans and the Contracts and related documents, or otherwise. The predecessor Servicer agrees to shall cooperate with the Trustee successor Servicer and such Successor the Backup Servicer in effecting the termination of the responsibilities and rights of the predecessor Servicer to conduct servicing hereunderunder this Agreement, including without limitation the transfer to such Successor the Backup Servicer or the successor Servicer for administration by it of all authority of cash amounts that shall at the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer time be held by the Servicer predecessor servicer for deposit in a Lockbox Account deposit, or which shall thereafter be received by the Servicer with respect to the Pledged Loansa Loan or related Contract, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing related accounts and records maintained by the Successor Servicer’s personnel access . All Transition Expenses shall be paid by the predecessor servicer upon presentation of reasonable documentation of such costs and expenses. If such Transition Expenses are not paid to the successor Servicer by the predecessor Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at , such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer Transition Expenses shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphpaid under Section 5.08(a)(i) hereof.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Credit Acceptance Corp), Sale and Servicing Agreement (Credit Acceptance Corp)
Servicer Defaults. If any one of the following events (each, a “------------------ "Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to deliver any Servicer's Daily Report pursuant to Section 6.1, which continues unremedied for a period of five Business Days after such report is due; provided, however, the Servicer shall ------------------ not be entitled to cure any future failure to deliver any Servicer's Daily Report pursuant to Section 6.1 after Servicer shall have received written notice from Majority Holders to the effect that, in their reasonable good faith judgment and based on information they believe to be reliable, they have determined that the Servicer is no longer able (or, in the future may no longer be able) to discharge its duties effectively under this Agreement;
(b) any failure by the Servicer to deliver any information to the Trustee pursuant to Section 6.2 or any Servicer's Monthly Report to the Trustee, the Rating Agency, and each Noteholder pursuant to Section 6.3 or to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Article VII on or before the date such information, Servicer's Monthly Report, payment, transfer transfer, deposit, instruction or deposit notice is required to be made or given by the Servicer under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysAgreement;
(bc) failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any other Transaction Document to Purchase Agreement, which the Servicer is a party and such failure continues unremedied for a period of 30 days after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Insurer any Noteholder; or the Holders of 25% or more of the Aggregate Principal Amount of the NotesServicer shall assign its duties under this Agreement, except as permitted by Section 5.17;
(cd) any representation and representation, warranty or certification made by the Servicer in this Indenture Agreement or any Purchase Agreement or in any certificate delivered pursuant to this Agreement or any Purchase Agreement shall prove to have been incorrect in any material respect when made and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days after the earlier of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesmade;
(d) an Insolvency Event shall occur with respect to the Servicer or the Performance Guarantor; or
(e) the Servicer shall fail consent to deliver the reports described appointment of a conservator or receiver or liquidator in Section 8.1 any insolvency, readjustment of this Indenture debt, marshalling of assets and liabilities or similar proceedings of or relating to 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 or receiver or liquidator in any insolvency, 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 the Servicer and such failure decree or order shall continue have remained in force undischarged or unstayed for five Business Daysa period of 60 days; or the Servicer shall become insolvent, admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable Debtor Relief Law, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(f) a final judgment is rendered against FAC while acting as Servicer in an amount greater than $1,000,000 and, within 45 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 45 days after the expiration of any such stay, such judgment is not discharged; or
(g) the Majority Holders (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Agreement or (B) shall determine, in their reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer:
(1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Agreement), or (3) has ceased to conduct its business in the ordinary course. THEN, so long as such Servicer Default shall be continuing, either the Control Party Trustee, or the Majority Holders, by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer Servicer and each Rating Agency (and to the Trustee if given by the Majority Holders) (a “"Termination Notice”"), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture Agreement (such termination being herein called a “"Service Transfer”"). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until on the date that a Successor Servicer shall have been appointed by the Majority Holders pursuant to Section 12.2 and 13.2, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, Servicer without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) Majority Holders is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including including, without limitation limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans Contracts provided for under this IndentureAgreement, including including, without limitation limitation, all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged LoansContracts, and in assisting the Successor Servicer in enforcing all rights under this Indenture Agreement including, without limitation, allowing the Successor Servicer’s 's personnel access to the Servicer’s 's premises for the purpose of collecting payments on the Pledged Loans Contracts made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans Contracts to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans Contracts in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s 's officers and employees. To the extent that compliance with this Section 12.1 13.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraph.
Appears in 1 contract
Samples: Pledge and Servicing Agreement (Fairfield Communities Inc)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is (including without limitation with respect to Collections) as required to be made or given by the Servicer under the terms of this Indenture and such failure remains Agreement which continues unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result period of circumstances beyond the Servicer’s control, the grace period shall be extended to five three Business Days;
(b) any failure by the Servicer to give instructions or notice to the Administrative Agent and each Purchaser Agent as required by this Agreement, or to deliver any required Monthly Report or other Required Reports hereunder on or before the date occurring two Business Days after the date such instruction, notice or report is required to be made or given, as the case may be, under the terms of this Agreement;
(c) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any the other Transaction Document Documents to which the Servicer is a party and such failure the same continues unremedied for a period of 30 fifteen (15) days after the earlier to occur of the date on which the Servicer has actual knowledge of the failure and (i) the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Trustee, or to Administrative Agent and each Purchaser Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(cd) any representation and representation, warranty or certification made by the Servicer in this Indenture any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect in any material respect when made and made, which has a material and adverse impact Material Adverse Effect on the Trustee’s interest in Administrative Agent, any Purchaser Agent or the Pledged Loans Secured Parties and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days which continues to be unremedied for a period of fifteen (15) days after the earlier to occur of the date on which the Servicer has actual knowledge of such breach and (i) the date on which written notice of such breach incorrectness requiring that such breach the same to be remedied, remedied shall have been given to the Servicer by the Trustee Administrative Agent or to any Purchaser Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(de) an Insolvency Event shall occur with respect to the Servicer;
(f) any material delegation of the Servicer’s duties that is not permitted by Section 6.1;
(g) any financial or other information reasonably requested by the Administrative Agent, any Purchaser Agent or any Purchaser is not provided as requested within a reasonable amount of time following such request;
(h) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of $10,000,000, individually or in the aggregate, and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than sixty (60) consecutive days without a stay of execution;
(i) the failure of the Servicer to make any payment due with respect to any recourse debt or other obligations, which debt or other obligations are in excess of $10,000,000, individually or in the aggregate, or the Performance Guarantoroccurrence of any event or condition that would at such time permit acceleration of such recourse debt or other obligations;
(j) CapitalSource Inc.’s Consolidated Tangible Net Worth is less than (i) $1,725,000,000, plus (ii) 70% of the cumulative Net Proceeds of Capital Stock/Conversion of Debt received at any time after February 24, 2010;
(k) a payment default or other default, termination event or other similar event has occurred and is continuing (beyond any applicable grace period) under the Credit Agreement, any Citibank Facilities, the CS Europe Financing or under or with respect to any repurchase agreement, securitization or any other facility providing indebtedness for borrowed money, in each case, in an amount greater than $10,000,000 to or for the benefit of CapitalSource Inc. or any of its Subsidiaries (except for those securitizations or other facilities listed on Schedule VIII, as the same may be updated from time to time as mutually agreed by the Servicer and the Administrative Agent), and at such time such event permits the lender or holder of rights thereunder to terminate commitments, accelerate the obligations owing thereunder or otherwise exercise remedies thereunder; provided, that a Servicer Default arising as a result of a default, termination event, margin call or other similar event with respect to a repurchase agreement or series of repurchase agreements shall be deemed to be cured with the effect of being considered not to have occurred, to the extent that either (i) the surrender of the related collateral in whole to (or liquidation of the related collateral in whole by) the repo counterparty under such repurchase agreement (by itself or together with any payments made, or additional collateral provided to, the repo counterparty) constitutes satisfaction in full of the obligations of CapitalSource Inc. and its Subsidiaries thereunder, or (ii) the deficiency amount under such repurchase agreement or series of repurchase agreements after application of collateral proceeds with respect to the sale or liquidation of the related collateral is less than $10,000,000;
(l) the Servicer fails in any material respect to comply with the Credit and Collection Policy regarding the servicing of the Collateral;
(m) the Servicer consents or agrees to, or otherwise permits to occur, any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy (after the adoption of same) in whole or in part that could be reasonably expected to have a Material Adverse Effect upon the Collateral, the Administrative Agent, any Purchaser Agent or the Secured Parties, without the prior written consent of the Administrative Agent and each Purchaser Agent;
(n) CapitalSource Finance ceases to be the Servicer; or
(eo) the Servicer shall fail fails (or fails to deliver cause the reports described related REO Asset Owner) in Section 8.1 any material respect to comply with the provisions herein relating to the servicing and administering of this Indenture and such failure shall continue for five Business Days. THENany REO Asset; then notwithstanding anything herein to the contrary, so long as any such Servicer Default shall be continuingnot have been remedied within any applicable cure period prior to the date of the Servicer Termination Notice (defined below), the Control Party Administrative Agent, by written notice then given in writing to the Servicer (with a copy to the Backup Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency ) (a “Servicer Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphAgreement.
Appears in 1 contract
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee to make such payment, transfer or deposit on or before the date such payment, transfer or deposit or such instruction or notice is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture Agreement or the Indenture, and such failure remains which continues unremedied for two a period of five (5) Business Days; providedDays after the earlier of (i) the date on which notice of such failure, howeverrequiring the same to be remedied, that if shall have been given by registered or certified mail to the Servicer is unable by the Issuer or the Indenture Trustee, or to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business Days;Issuer and the Indenture Trustee by the Required Holders and (ii) the actual knowledge of the Servicer thereof; or
(b) failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any other Transaction Document to the Indenture, which failure has a material adverse effect on the Servicer is a party interests of the Noteholders (as determined by the Required Noteholders) and such failure which continues unremedied for a period of 30 sixty (60) days after the earlier of (i) the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given by registered or certified mail to the Servicer by the Issuer or the Indenture Trustee, or to the Servicer and the Indenture Trustee by the Insurer or Required Noteholders and (ii) the Holders of 25% or more actual knowledge of the Aggregate Principal Amount of the Notes;Servicer thereof; or
(c) any representation and representation, warranty or certification made by the Servicer in this Agreement or the Indenture or in any certificate delivered pursuant to this Agreement or the Indenture shall prove to have been incorrect in any material respect when made or deemed made and such failure has a material and adverse impact effect on the Trustee’s interest in Noteholders (as determined by the Pledged Loans Required Noteholders) and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days which continues unremedied for a period of sixty (60) days after the earlier of (i) the date on which a notice specifying such incorrect representation or warranty and requiring the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach same to be remedied, shall have been given by registered or certified mail to the Servicer by the Issuer, the Issuer Loan Trustee for the benefit of the Issuer or the Indenture Trustee, or to the Servicer Servicer, the Issuer, the Issuer Loan Trustee for the benefit of the Issuer and the Indenture Trustee by the Insurer or Required Noteholders and (ii) the Holders of 25% or more actual knowledge of the Aggregate Principal Amount of the Notes;Servicer thereof; or
(d) an Insolvency Event shall occur with respect to the Servicer or the Performance GuarantorServicer; or
(e) the Servicer or any affiliate thereof shall fail to deliver have been terminated or otherwise removed as servicer, master servicer or subservicer of any other personal loan securitization following a servicer default, master servicer default, subservicer default or similar event in connection with such other securitization; then, in the reports described in Section 8.1 event of this Indenture and such failure shall continue for five Business Days. THENany Servicer Default, so long as such a Servicer Default shall be is continuing, the Control Party Indenture Trustee may (and upon the written direction of the Required Noteholders shall), by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, Issuer Loan Trustee for the Insurer benefit of the Issuer and each Rating Agency the Back-up Servicer (a “Termination Notice”), may ) (i) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and the Indenture and (ii) direct the applicable party to terminate any power of attorney granted to the Servicer and direct such termination being herein called party to execute a “Service Transfer”)new power of attorney to the Indenture Trustee or its designee. The existence of a Servicer Default may be waived with the consent of the Required Noteholders. After receipt by the Servicer of a Termination Notice, and effective on the Trustee of such Termination Notice and subject to the terms of Section 12.2(a)Servicing Transfer Date, the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in the Successor Servicer (a “Servicing Transfer”) appointed by the Indenture Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, pursuant to Section 8.02; and, without limitation, the Indenture Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperatecooperate promptly) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsServicing Transfer. The Servicer agrees to cooperate and to cause each Subservicer to cooperate (and each Subservicer agrees to cooperate) with the Indenture Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder and (ii) transferring all duties and obligations of the Servicer hereunder to such Successor Servicer, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service and administer the Pledged Loans provided for under this IndentureAgreement, including without limitation all authority over any all Collections which shall on the date of transfer be held by the Servicer for deposit deposit, or which have been deposited by the Servicer, in a Lockbox the Collection Account or other applicable Note Account, or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer to the Successor Servicer all its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer Loans, together with all other records, correspondence and documents necessary for the continued servicing and administration of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Notwithstanding the foregoing, the Servicer shall allow be allowed to retain a copy of all records, correspondence and documents provided to the Successor Servicer access to in compliance with the Servicer’s officers and employeesrecordkeeping policies or Requirements of Law. The predecessor Servicer shall be responsible for all expenses incurred in transferring the servicing duties to the Successor Servicer. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidentialconfidential or give the Successor Servicer access to software or other intellectual property, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interest and as interests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of five (5) Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of sixty (60) days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be satisfactory in form and substance to prevented by the Successor Servicer. The Servicer hereby consents to the entry against it exercise of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance reasonable diligence by the Servicer and such delay or failure was caused by a Force Majeure Event. If, following the expiration of such incremental sixty (60) day grace period in the case of a delay or failure of performance described in paragraph (b) or (c) above, the applicable delay or failure of performance remains outstanding but the Servicer continues to work diligently to remedy such delay or failure of performance, then the grace period shall be extended for a further thirty (30) days upon notice from the Servicer to the Indenture Trustee. The preceding sentences shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the provisions terms of this paragraphAgreement and the Servicer shall provide the Indenture Trustee, the Issuer and the Depositor with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 1 contract
Samples: Sale and Servicing Agreement (OneMain Financial Holdings, Inc.)
Servicer Defaults. If any one of the following events (each, a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make deliver to the Agent any paymentMonthly Settlement Report, transfer Borrowing Date/Spread Account Surplus Settlement Report or deposit Commercial Paper Settlement Report pursuant to Section 6.07 on or before the date such delivery is due under the terms of this Agreement; or
(b) any failure by the Servicer to deliver any other information to the Agent required pursuant to Section 6.01 on or before the date such information, payment, transfer transfer, deposit, instruction or deposit notice is required to be made or given by the Servicer under the terms of this Indenture and such failure remains Agreement, which continues unremedied for two a period of three Business DaysDays after such information is due under the terms of this Agreement; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business Days;or
(bc) any failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any of the other Transaction Document related documents to which the Servicer it is a party and such failure which continues unremedied for a period of 30 days ten Business Days after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the TrusteeAgent, or to the Servicer and the Trustee Agent by the Insurer Lender; or the Holders of 25% Servicer shall assign its duties under this Agreement or more under any of the Aggregate Principal Amount other related documents to which it is a party, except as permitted in accordance with the terms of the Notes;Sections 8.02 and 10.04; or
(cd) any representation and representation, warranty or certification made by the Servicer in this Indenture Agreement or any other related document to which it is a party or in any certificate delivered pursuant to this Agreement or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when made and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days after the earlier of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(d) an Insolvency Event shall occur with respect to the Servicer or the Performance Guarantormade; or
(e) The Borrower or the Servicer originator shall fail to deliver pay any principal of or premium or interest on any Debt in an amount in excess of $10,000 (with respect to the reports described in Section 8.1 of this Indenture Borrower) or $250,000 (with respect to the Originator), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue for five Business Days. THENafter the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any Debt in an amount in excess of $10,000 (with respect to the Borrower) or $750,000 (with respect to the Originator) or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(f) a final judgment is rendered against the Servicer while acting as Servicer in an amount greater than $1,000,000 and, within 45 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 45 days after the expiration of any such stay, such judgment is not discharged; or
(g) either the Agent or the Lender (i) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Agreement or (ii) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer: (A) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (B) has defaulted on any of its material obligations (other than those included in this Agreement), or (C) has ceased to conduct its business in the ordinary course, then, so long as such Servicer Default shall be continuingnot have been remedied, the Control Party Agent by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency Servicer (a “"Servicer Termination Notice”"), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture Agreement (such termination being herein called a “Service "Servicer Transfer”"). After receipt by the Servicer and the Trustee of such Servicer Termination Notice and subject to the terms of Section 12.2(a)Notice, the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in the Trustee Standby Servicer or such another Successor Servicer, as the case may be, without further action on the part of any Person, Servicer appointed pursuant to Section 8.02; and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) Agent is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee Agent and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including including, without limitation limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans Receivables and related Pledged Assets provided for under this IndentureAgreement, including including, without limitation limitation, all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit or withdrawal in a Lockbox Lock-box Account or the Agent's Account or which shall thereafter be received by the Servicer with respect to the Pledged LoansReceivables, and in assisting the Successor Servicer in enforcing all rights under this Indenture Agreement including, without limitation, allowing the Successor Servicer’s 's personnel access to the Servicer’s 's premises for the purpose of collecting payments on the Pledged Loans Assets made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans Assets to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans Assets in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s 's officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraph.
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (Equivest Finance Inc)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit into the Collection Account as required by this Agreement and such failure shall continue for two (2) Business Days; or
(b) any failure by the Servicer to give instructions or notice to the Deal Agent as required by Section 5.4(g) or 5.4(i), or to deliver any Required Reports hereunder, on or before the date occurring two (2) Business Days after the date such payment, transfer instruction of notice or deposit report is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture and such failure remains unremedied for two Business DaysAgreement; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business Days;or
(bc) any failure on the part of the Servicer or NewStar Financial, in its capacity as guarantor of the Servicer’s obligations pursuant to the Transaction Documents (in such capacity, the “Servicer Guarantor”), duly to observe or perform in any material respect any other covenants or agreements of the Servicer or the Servicer Guarantor set forth in this Indenture Agreement or any the other Transaction Document Documents to which the Servicer or the Servicer Guarantor is a party and such which failure continues unremedied for a period of 30 thirty (30) days (if such failure can be remedied) after the earlier to occur of the date on which the Servicer has actual knowledge of the failure and (i) the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(c) any representation and warranty made by the Servicer in this Indenture shall prove to have been incorrect in any material respect when made and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance Guarantor (with such representation a copy to the Backup Servicer) by the Deal Agent or warranty within 30 Business Days after the earlier of Trustee and (ii) the date on which the Servicer has actual or the Servicer Guarantor acquires knowledge thereof; or
(d) the initial Servicer consents or agrees to, or otherwise permits to occur, an amendment to the Credit and Collection Policy other than as permitted by Section 5.5(e); or
(e) any representation, warranty or certification made by the Servicer or the Servicer Guarantor in any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been false or incorrect in any materially adverse respect when made, deemed made or delivered which continues to be unremedied for a period of such breach and thirty (30) days after the earlier to occur of (i) the date on which written notice of such breach failure requiring that such breach the same to be remedied, remedied shall have been given to the Servicer and the Servicer Guarantor (with a copy to the Backup Servicer) by the Deal Agent or the Trustee or to and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;Servicer Guarantor acquires knowledge thereof; or
(df) an Insolvency Event shall occur with respect to the Servicer or the Performance GuarantorNewStar Financial; or
(eg) any financial or Asset information reasonably requested by the Deal Agent or the Lender as provided herein is not provided by the Servicer as requested within the greater of (a) three (3) Business Days or (b) five (5) days following such request; or
(h) the rendering against the initial Servicer or NewStar Financial of one or more final judgments, decrees or orders for the payment of money in excess of United States $10,000, in the aggregate, in the case of the initial Servicer, or $7,500,000, in the aggregate, in the case of NewStar Financial, and, in each case, the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than sixty (60) consecutive days without a stay of execution; or
(i) the failure of the Servicer (for so long as the Servicer is the Originator) or NewStar Financial to make any payment due with respect to aggregate recourse debt or other obligations with an aggregate principal amount exceeding United States $5,000,000, or the occurrence of any event or condition that has resulted in the acceleration of such recourse debt or other obligations if such event or condition has not been waived; or
(j) any change in the control of the initial Servicer or NewStar Financial that takes the form of either a merger or consolidation that does not comply with the provisions of Section 5.5(b) hereof or Section 3.2(i) of the Guaranty, as applicable, or a Change-in-Control occurs; or
(k) the earlier of (i) the termination or material modification (without the prior written consent of the Deal Agent) of any contract NewStar Financial enters into with a third-party consultant to provide equipment management activities or (ii) ninety (90) days after any such consultant gives notice of its intent not to renew such contract; provided, however, the initial Servicer shall fail have forty-five (45) days after the occurrence of such event to deliver hire or contract an experienced equipment manager acceptable to the reports Deal Agent and approved by the Deal Agent in writing; or
(l) [Reserved]; or
(m) the failure of NewStar Financial to maintain Liquidity of at least $25,000,000 for more than the greater of three (3) Business Days or five (5) days; provided, however, on one occurrence from and after the Closing Date only on which NewStar Financial fails to maintain such Liquidity for more than five (5) days, no Servicer Default shall occur unless such failure continues for thirty (30) days or more; provided, further, however, in the event a Servicer Default of the type described in Section 8.1 this clause (m) shall occur or be expected to occur, the Servicer or NewStar Financial may request a waiver of this Indenture such Servicer Default and, in connection therewith, submit to the Deal Agent and the Lender a cash flow forecast which forecasts the cure of such Servicer Default (for the avoidance of doubt, Deal Agent and Lender may approve or disapprove such request in their sole and absolute discretion); or
(n) the failure shall continue of NewStar Financial to maintain Liquidity of at least $15,000,000 for five more than three (3) Business Days. THEN; or
(o) NewStar Financial fails to maintain the aggregate of its GAAP stockholders’ equity and subscribed stockholders’ equity in an amount equal to $475,000,000, as (i) increased by 80% of the proceeds of any equity offerings (including capital contributions) of NewStar Financial consummated after the Closing Date, (ii) increased by 50% of cumulative positive GAAP net income earned by NewStar Financial after the Closing Date and (iii) as decreased, due to an accounting change or changes in tax rates imposed after the Closing Date, by the amounts of any reductions in the assets designated on NewStar Financial’s consolidated balance sheet as “deferred income taxes, net” and/or “deferred financing costs, net” from the amounts thereof shown on NewStar Financial’s consolidated balance sheet as of September 30, 2010; or
(p) occurrence of a material exception in any audit of the initial Servicer or NewStar Financial which has an adverse effect on the Lender or any other Secured Party; or
(q) NewStar Financial or any majority-owned Affiliate thereof defaults beyond any applicable grace period in performing any obligation as servicer under any term loan or revolving credit facility (for the avoidance of doubt, excluding this Agreement except as expressly provided herein and any 144A or publicly registered CLOs) with the Lender or any of Affiliate thereof which is majority-owned, directly or indirectly, by the ultimate parent of the Lender; then notwithstanding anything herein to the contrary, so long as any such Servicer Default shall be continuingnot have been remedied within any applicable cure period prior to the date of the Servicer Termination Notice (defined below), the Control Party Deal Agent, by written notice then given in writing to the Servicer (with a copy to the Backup Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency ) (a “Servicer Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphAgreement.
Appears in 1 contract
Servicer Defaults. If any one of the following events (each, a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to deliver to the Collateral Agent any information or reports required pursuant to Section 6.01(a), (d), (e) or (f), which continues unremedied for a period of five Business Days after such report is due; provided, however, the Servicer shall not be entitled to cure any future failure to deliver any Servicer's Daily Report pursuant to Section 6.01(a) after the Servicer shall have received written notice from to the Collateral Agent to the effect that, in its reasonable good faith judgment and based on information it believes to be reliable, it has determined that the Servicer is no longer able (or, in the future may no longer be able) to discharge its duties effectively under this Credit Agreement or under any of the other Facility Documents to which it is a party; or
(b) any failure (i) by the Servicer to deliver any other information to the Collateral Agent required pursuant to Section 6.01 (including, without limitation, the failure to deliver any Settlement Report) on or before the date such information or Settlement Report is required to be given or made under the terms of this Credit Agreement, (ii) by the Servicer or FCI to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made or given by the Servicer under the terms of this Indenture and Credit Agreement or any of the other Facility Documents to which it is a party, and, solely in the case of any such payments which do not constitute payments of principal or interest on the Triple-A Loans, such failure remains shall remain unremedied for two three Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business Days;
(b) failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture or any other Transaction Document to which the Servicer is a party and such failure continues unremedied for a period of 30 days Days after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring from the same to be remedied, shall have been given to the Servicer by the Trustee, Collateral Agent or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(ciii) any representation and warranty made by the Servicer in this Indenture shall prove to have been incorrect in any material respect when made and has a material and adverse impact give instructions or notice to the Collateral Agent pursuant to Article IX on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days after the earlier of before the date on which such instruction or notice is required to be made or given under the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(d) an Insolvency Event shall occur with respect to the Servicer or the Performance Guarantor; or
(e) the Servicer shall fail to deliver the reports described in Section 8.1 terms of this Indenture Credit Agreement, and such failure shall continue remain unremedied for five Business Days. THEN, so long as such Servicer Default shall be continuing, the Control Party by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency (a “Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraph.; or
Appears in 1 contract
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any required payment, transfer or deposit or to give instructions or notice to the Indenture Trustee to make or cause to be made such payment, transfer or deposit on or before the date such payment, transfer or deposit or such instruction or notice is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture Agreement, the Indenture, the 2022-2B SUBI Supplement, or the 2022-2B SUBI Servicing Agreement, in an aggregate amount exceeding $50,000, and such which failure remains continues unremedied for two a period of five (5) Business Days; providedDays after the earlier of (i) the date on which notice of such failure, howeverrequiring the same to be remedied, that if shall have been given by registered or certified mail to the Servicer is unable by the Issuer or the Indenture Trustee, or to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysIssuer and the Indenture Trustee by the Required Noteholders and (ii) the actual knowledge of the Servicer thereof;
(b) any failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture Agreement, the Indenture, the 2022-2B SUBI Supplement or the 2022-2B SUBI Servicing Agreement or in any other Transaction Document to which certificate delivered by the Servicer is pursuant to this Agreement, the 2022-2B SUBI Supplement, the 2022-2B SUBI Servicing Agreement or the Indenture, which failure has a party material adverse effect on the interests of the Noteholders (as determined by the Threshold Noteholders) and such failure which continues unremedied for a period of 30 forty-five (45) days after the earlier of (i) the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given by registered or certified mail to the Servicer by the Issuer or the Indenture Trustee, or to the Servicer Servicer, the Issuer and the Indenture Trustee by the Insurer or Threshold Noteholders and (ii) the Holders of 25% or more actual knowledge of the Aggregate Principal Amount of the NotesServicer thereof;
(c) any representation and representation, warranty or certification made by the Servicer in this Indenture Agreement, the Indenture, the 2022-2B SUBI Supplement or the 2022-2B SUBI Servicing Agreement or in any certificate delivered by the Servicer pursuant to this Agreement, the Indenture, the 2022-2B SUBI Supplement or the 2022-2B SUBI Servicing Agreement shall prove to have been incorrect in any material respect when made or deemed made and such failure has a material and adverse impact effect on the Trustee’s interest in Noteholders (as determined by the Pledged Loans Threshold Noteholders) and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days which continues unremedied for a period of forty-five (45) days after the earlier of (i) the date on which a notice specifying such incorrect representation or warranty and requiring the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach same to be remedied, shall have been given by registered or certified mail to the Servicer by the Trustee Issuer or the Indenture Trustee, or to the Servicer Servicer, the Issuer, and the Indenture Trustee by the Insurer or Threshold Noteholders and (ii) the Holders of 25% or more actual knowledge of the Aggregate Principal Amount of the Notes;Servicer thereof; or
(d) an Insolvency Event shall occur with respect to the Servicer; SALE AND SERVICING AGREEMENT (RMIT 2022-2B) - Page 28 then, in the event of any Servicer or the Performance Guarantor; or
(e) the Servicer shall fail to deliver the reports described in Section 8.1 of this Indenture and such failure shall continue for five Business Days. THENDefault, so long as such a Servicer Default shall be is continuing, the Control Party Indenture Trustee may (and upon the written direction of the Required Noteholders shall), by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, North Carolina Trust and the Insurer and each Rating Agency Back-up Servicer (a “Termination Notice”), may ) (i) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement, the 2022-2B SUBI Supplement, the 2022-2B SUBI Servicing Agreement and the Indenture and (ii) direct the applicable party to terminate any power of attorney granted to the Servicer or any Subservicer and direct such termination being herein called party to execute a “Service Transfer”)new power of attorney to the Indenture Trustee or its designee. The existence of a Servicer Default may be waived with the consent of the Required Noteholders. Notwithstanding the foregoing, a delay in or failure of performance referred to under paragraph (a) above for an additional period of five (5) Business Days after the applicable grace period or referred to under paragraph (b) or (c) above for a period of forty-five (45) days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by a Force Majeure Event. If, following the expiration of such incremental forty-five (45) day grace period in the case of a delay or failure of performance described in paragraph (b) or (c) above, the applicable delay or failure of performance remains outstanding but the Servicer continues to work diligently to remedy such delay or failure of performance, then the grace period shall be extended for a further thirty (30) days upon notice from the Servicer to the Indenture Trustee. The preceding sentences will not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Issuer and the Depositor with an Officer’s Certificate giving prompt notice of such failure or delay, together with a description of its efforts so to perform its obligations. After receipt by the Servicer of a Termination Notice, and effective on the Trustee of such Termination Notice and subject to the terms of Section 12.2(a)Servicing Transfer Date, the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in the Successor Servicer (a “Servicing Transfer”) appointed by the Indenture Trustee (at the written direction of the Required Noteholders if the Successor Servicer is not the Back-up Servicer or such Successor Servicer, as the case may be, without further action on the part of any Person, Indenture Trustee) pursuant to Section 8.02; and, without limitation, the Indenture Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperatecooperate promptly) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsServicing Transfer. The Servicer agrees to reasonably cooperate and to cause each Subservicer to reasonably cooperate (and each Subservicer agrees to cooperate) with the Indenture Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder and (ii) transferring all duties and obligations of the Servicer hereunder to such Successor Servicer, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service and administer the Pledged Loans provided for under this IndentureAgreement, including without limitation all authority over any all Collections which shall on the date of transfer be held by the Servicer for deposit deposit, or which have been deposited by the Servicer, in a Lockbox the Collection Account or other applicable Note Account, or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer to the Successor Servicer all its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer Loans, together with all other records, correspondence and documents necessary for the continued servicing and SALE AND SERVICING AGREEMENT (RMIT 2022-2B) - Page 29 administration of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Notwithstanding the foregoing, the Servicer shall allow be allowed to retain a copy of all records, correspondence and documents provided to the Successor Servicer access to in compliance with the Servicer’s officers and employeesrecordkeeping policies or Requirements of Law. The predecessor Servicer shall be responsible for all expenses incurred in transferring the servicing duties to the Successor Servicer. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidentialconfidential or give the Successor Servicer access to software or other intellectual property, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphinterests.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Regional Management Corp.)
Servicer Defaults. If any one of the following events (each, a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made or given by the Servicer under the terms of this Indenture and such failure remains unremedied for two three Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s 's control, the grace period shall be extended to five Business Days;
(b) failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture or any other Transaction Document to which the Servicer is a party and such failure continues unremedied for a period of 30 days after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(c) any representation and warranty made by the Servicer in this Indenture shall prove to have been incorrect in any material respect when made and has a material and adverse impact on the Trustee’s 's interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days after the earlier of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(d) an Insolvency Event shall occur with respect to the Servicer or the Performance GuarantorCendant; or
(e) the Servicer shall fail to deliver the reports described in Section 8.1 of this Indenture and such failure shall continue for five Business Days. THEN, so long as such Servicer Default shall be continuing, either the Control Party Trustee, or the Majority Holders of all Notes by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer Issuer and each Rating Agency (and to the Trustee if given by the Majority Holders) (a “"Termination Notice”"), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “"Service Transfer”"). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) Majority Holders is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s 's personnel access to the Servicer’s 's premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s 's officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraph.
Appears in 1 contract
Servicer Defaults. If any one Any of the following events (each, shall constitute a “Servicer Default”) shall occur and be continuing"SERVICER DEFAULT":
(a) any failure by the Servicer in its capacity as Servicer to make any payment, transfer or deposit on required by any Transaction Document to be made by it or before the date to give instructions or to give notice to Trustee to make such payment, transfer or deposit is required to be made or given by the Servicer under the terms of this Indenture and such deposit, which failure remains continues unremedied for two three Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business Days;,
(b) except as set forth in the other paragraphs of this SECTION 10.1, failure on the part of the Servicer in its capacity as Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any other Transaction Document to Document, which failure has a material adverse effect on the Servicer is a party Holders and such failure continues unremedied for a period of 30 days after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such the failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by any Noteholder or, subject to the Insurer or the Holders of 25% or more prior written approval of the Aggregate Principal Amount of the Notes;Required Holders, Issuer,
(c) Servicer shall assign its duties under this Agreement, except as permitted by SECTIONS 3.1(b) and 8.3,
(d) any representation and warranty made by the Servicer in this Indenture Daily Report or Monthly Report shall prove fail to have been incorrect correct in any material respect when made or delivered, or shall not have been delivered when required under the terms hereof, and in either case such condition continues unremedied for a period of three Business Days; or any other representation, warranty or certification made by Servicer in any Transaction Document or in any certificate or other document or instrument delivered pursuant to any Transaction Document shall fail to have been correct in any material respect when made or delivered, which failure has a material and materially adverse impact effect on the Trustee’s interest in the Pledged Loans Noteholders and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 which materially adverse effect continues unremedied for a period of 15 Business Days after the earlier of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach failure, requiring that such breach the same to be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by any Noteholder or, subject to the Insurer or the Holders of 25% or more prior written approval of the Aggregate Principal Amount of the Notes;Required Holders, Issuer, or
(de) an Insolvency any Bankruptcy Event shall occur with respect to Servicer. In the event of any Servicer or the Performance Guarantor; or
(e) the Servicer shall fail to deliver the reports described in Section 8.1 of this Indenture and such failure shall continue for five Business Days. THENDefault, so long as such Servicer Default shall be continuingnot have been remedied, Issuer shall, at the Control Party direction of Trustee or the Required Holders, by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency Servicer (a “Termination Notice”"TERMINATION NOTICE"), may terminate all (but not less than all) of the rights and obligations of the Servicer as Servicer under this Indenture Agreement and in and to the Receivables, the Related Pledged Assets and the proceeds thereof. As soon as possible, and in any event within five Business Days, after an Authorized Officer of Servicer has obtained knowledge of the occurrence of any Servicer Default, Servicer shall furnish Issuer, Trustee and the Rating Agencies, and Trustee shall promptly furnish each Noteholder, notice of such Servicer Default. Notwithstanding the foregoing, a delay in or failure in performance referred to in SUBSECTION (such termination being herein called a) for a “Service Transfer”). After receipt period of ten Business Days after the applicable grace period, or in SUBSECTION (b) or (d) for a period of 30 Business Days after the applicable grace period, shall not constitute a Servicer Default if the delay or failure could not have been prevented by the exercise of reasonable diligence by Servicer and the Trustee delay or failure was caused by an act of such Termination Notice and subject God or the public enemy, riots, acts of war, acts of terrorism, epidemics, flood, embargoes, weather, landslides, fire, earthquakes or similar causes. The preceding sentence shall not relieve Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instrumentsTransaction Documents, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer give Issuer and Trustee an Officer's Certificate notifying them of its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary failure or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphdelay.
Appears in 1 contract
Servicer Defaults. If any one of the following events (each, a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (including without limitation with respect to Collections) as required by this Agreement which continues unremedied for a period of one (1) Business Day;
(b) any failure by the Servicer to give instructions or notice to the Administrative Agent and each Purchaser Agent as required by this Agreement, or to deliver any required Monthly Report or other Required Reports hereunder on or before the date occurring two (2) Business Days after the date such paymentinstruction, transfer notice or deposit report is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysAgreement;
(bc) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any the other Transaction Document Documents to which the Servicer is a party and such failure the same continues unremedied for a period of 30 thirty (30) days after the earlier to occur of the date on which the Servicer has actual knowledge of the failure and (i) the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Trustee, or to Administrative Agent and each Purchaser Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(cd) any representation and representation, warranty or certification made by the Servicer in this Indenture any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect in any material respect when made and made, which has a material and adverse impact Material Adverse Effect on the Trustee’s interest in Administrative Agent, any Purchaser Agent or the Pledged Loans Secured Parties and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days which continues to be unremedied for a period of thirty (30) days after the earlier to occur of the date on which the Servicer has actual knowledge of such breach and (i) the date on which written notice of such breach incorrectness requiring that such breach the same to be remedied, remedied shall have been given to 106 the Servicer by the Trustee Administrative Agent or to any Purchaser Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(de) an Insolvency Event shall occur with respect to the Servicer;
(f) any material delegation of the Servicer's duties that is not permitted by Section 6.1;
(g) any financial or other information reasonably requested by the Administrative Agent, any Purchaser Agent or any Purchaser is not provided as requested within a reasonable amount of time following such request;
(h) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of United States $2,000,000, individually or in the aggregate, and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than sixty (60) consecutive days without a stay of execution;
(i) the failure of the Servicer to make any payment due with respect to any recourse debt or other obligations, which debt or other obligations are in excess of United States $2,000,000, individually or in the aggregate, or the Performance Guarantoroccurrence of any event or condition that would permit acceleration of such recourse debt or other obligations whether or not waived;
(j) the Servicer fails to maintain a GAAP balance sheet net worth equal to at least 90% of the total drawn capital of the Servicer;
(k) any change in the management of the Servicer (whether by resignation, termination, disability, death or lack of day to day management) relating to Xxxx Xxxxxxx, unless the same is waived in writing by the Administrative Agent and each Purchaser Agent;
(l) any change in the control of the Servicer that takes the form of either a merger or consolidation that does not comply with the provisions of Section 5.5;
(m) the Servicer fails in any material respect to comply with the Credit and Collection Policy regarding the servicing of the Assets;
(n) the Servicer consents or agrees to, or otherwise permits to occur, any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy (after the adoption of same) in whole or in part that could be reasonably expected to have a Material Adverse Effect upon the Assets, the Administrative Agent, any Purchaser Agent or the Secured Parties, without the prior written consent of the Administrative Agent and each Purchaser Agent;
(o) CapitalSource Finance ceases to be the Servicer; or
(ep) the Servicer shall fail fails to deliver maintain the reports described in Section 8.1 of this Indenture and such failure shall continue Loan Loss Reserve for five Business Days. THENany Watchlist Loans; then notwithstanding anything herein to the contrary, so long as any such Servicer Default shall be continuingnot have been remedied within any applicable cure period prior to the date of the Servicer Termination Notice (defined below), the Control Party Administrative Agent, by written notice then given in writing to the Servicer, Servicer (with a copy to the Swap Counterparty, the Issuer, the Trustee, the Insurer Backup Servicer and each Rating Agency Agency) (a “"Servicer Termination Notice”"), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphAgreement.
Appears in 1 contract
Samples: Loan Certificate and Servicing Agreement (Capitalsource Inc)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (including without limitation with respect to Collections) as required by this Agreement which continues unremedied for a period of one Business Day;
(b) any failure by the Servicer to give instructions or notice to the Administrative Agent and each Purchaser Agent as required by this Agreement, or to deliver any required Monthly Report or other Required Reports hereunder on or before the date occurring two Business Days after the date such paymentinstruction, transfer notice or deposit report is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysAgreement;
(bc) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any the other Transaction Document Documents to which the Servicer is a party and such failure the same continues unremedied for a period of 30 thirty (30) days after the earlier to occur of the date on which the Servicer has actual knowledge of the failure and (i) the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Trustee, or to Administrative Agent and each Purchaser Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(cd) any representation and representation, warranty or certification made by the Servicer in this Indenture any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect in any material respect when made and made, which has a material and adverse impact Material Adverse Effect on the Trustee’s interest in Administrative Agent, any Purchaser Agent or the Pledged Loans Secured Parties and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days which continues to be unremedied for a period of thirty (30) days after the earlier to occur of the date on which the Servicer has actual knowledge of such breach and (i) the date on which written notice of such breach incorrectness requiring that such breach the same to be remedied, remedied shall have been given to the Servicer by the Trustee Administrative Agent or to any Purchaser Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(de) an Insolvency Event shall occur with respect to the Servicer;
(f) any material delegation of the Servicer’s duties that is not permitted by Section 6.1;
(g) any financial or other information reasonably requested by the Administrative Agent, any Purchaser Agent or any Purchaser is not provided as requested within a reasonable amount of time following such request;
(h) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of $10,000,000, individually or in the aggregate, and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than sixty (60) consecutive days without a stay of execution;
(i) the failure of the Servicer to make any payment due with respect to any recourse debt or other obligations, which debt or other obligations are in excess of $10,000,000, individually or in the aggregate, or the Performance Guarantoroccurrence of any event or condition that would at such time permit acceleration of such recourse debt or other obligations;
(j) CapitalSource Inc.’s Consolidated Tangible Net Worth is less than (i) $1,015,000,000 plus (ii) 70% of the cumulative Net Proceeds of Capital Stock/Conversion of Debt received at any time since December 31, 2005;
(k) [Reserved];
(l) the Servicer fails in any material respect to comply with the Credit and Collection Policy regarding the servicing of the Collateral;
(m) the Servicer consents or agrees to, or otherwise permits to occur, any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy (after the adoption of same) in whole or in part that could be reasonably expected to have a Material Adverse Effect upon the Collateral, the Administrative Agent, any Purchaser Agent or the Secured Parties, without the prior written consent of the Administrative Agent and each Purchaser Agent; or
(en) CSE Mortgage ceases to be the Servicer shall fail Servicer. then notwithstanding anything herein to deliver the reports described in Section 8.1 of this Indenture and such failure shall continue for five Business Days. THENcontrary, so long as any such Servicer Default shall be continuingnot have been remedied within any applicable cure period prior to the date of the Servicer Termination Notice (defined below), the Control Party Administrative Agent, by written notice then given in writing to the Servicer (with a copy to the Backup Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency ) (a “Servicer Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphAgreement.
Appears in 1 contract
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (including without limitation with respect to Collections) as required by this Agreement which continues unremedied for a period of one Business Day;
(b) any failure by the Servicer to give instructions or notice to the Administrative Agent and each Purchaser Agent as required by this Agreement, or to deliver any required Monthly Report or other Required Reports hereunder on or before the date occurring two Business Days after the date such paymentinstruction, transfer notice or deposit report is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysAgreement;
(bc) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any the other Transaction Document Documents to which the Servicer is a party and such failure the same continues unremedied for a period of 30 thirty (30) days after the earlier to occur of the date on which the Servicer has actual knowledge of the failure and (i) the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Trustee, or to Administrative Agent and each Purchaser Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(cd) any representation and representation, warranty or certification made by the Servicer in this Indenture any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect in any material respect when made and made, which has a material and adverse impact Material Adverse Effect on the Trustee’s interest in Administrative Agent, any Purchaser Agent or the Pledged Loans Secured Parties and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days which continues to be unremedied for a period of thirty (30) days after the earlier to occur of the date on which the Servicer has actual knowledge of such breach and (i) the date on which written notice of such breach incorrectness requiring that such breach the same to be remedied, remedied shall have been given to the Servicer by the Trustee Administrative Agent or to any Purchaser Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(de) an Insolvency Event shall occur with respect to the Servicer;
(f) any material delegation of the Servicer’s duties that is not permitted by Section 6.1;
(g) any financial or other information reasonably requested by the Administrative Agent, any Purchaser Agent or any Purchaser is not provided as requested within a reasonable amount of time following such request;
(h) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of $7,500,000, individually or in the aggregate, and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than sixty (60) consecutive days without a stay of execution;
(i) the failure of the Servicer to make any payment due with respect to any recourse debt or other obligations, which debt or other obligations are in excess of $7,500,000, individually or in the aggregate, or the Performance Guarantoroccurrence of any event or condition that would permit acceleration of such recourse debt or other obligations whether or not waived;
(j) CapitalSource Inc. fails to maintain GAAP stockholders’ equity equal to at least $700,000,000 plus 80% of the proceeds of any equity offerings subsequent to the SLP Closing Date;
(k) [Reserved];
(l) the Servicer fails in any material respect to comply with the Credit and Collection Policy regarding the servicing of the Collateral;
(m) the Servicer consents or agrees to, or otherwise permits to occur, any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy (after the adoption of same) in whole or in part that could be reasonably expected to have a Material Adverse Effect upon the Collateral, the Administrative Agent, any Purchaser Agent or the Secured Parties, without the prior written consent of the Administrative Agent and each Purchaser Agent;
(n) CapitalSource Finance ceases to be the Servicer; or
(eo) the Servicer shall fail fails to deliver maintain the reports described in Section 8.1 of this Indenture and such failure shall continue Asset Loss Reserve for five Business Days. THENany Watchlist Assets; then notwithstanding anything herein to the contrary, so long as any such Servicer Default shall be continuingnot have been remedied within any applicable cure period prior to the date of the Servicer Termination Notice (defined below), the Control Party Administrative Agent, by written notice then given in writing to the Servicer (with a copy to the Backup Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency ) (a “Servicer Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphAgreement.
Appears in 1 contract
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (including without limitation with respect to Collections) as required by this Agreement which continues unremedied for a period of one Business Day;
(b) any failure by the Servicer to give instructions or notice to the Administrative Agent and each Purchaser Agent as required by this Agreement, or to deliver any required Monthly Report or other Required Reports hereunder on or before the date occurring two Business Days after the date such paymentinstruction, transfer notice or deposit report is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysAgreement;
(bc) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any the other Transaction Document Documents to which the Servicer is a party and such failure the same continues unremedied for a period of 30 thirty (30) days after the earlier to occur of the date on which the Servicer has actual knowledge of the failure and (i) the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Trustee, or to Administrative Agent and each Purchaser Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(cd) any representation and representation, warranty or certification made by the Servicer in this Indenture any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect in any material respect when made and made, which has a material and adverse impact Material Adverse Effect on the Trustee’s interest in Administrative Agent, any Purchaser Agent or the Pledged Loans Secured Parties and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days which continues to be unremedied for a period of thirty (30) days after the earlier to occur of the date on which the Servicer has actual knowledge of such breach and (i) the date on which written notice of such breach incorrectness requiring that such breach the same to be remedied, remedied shall have been given to the Servicer by the Trustee Administrative Agent or to any Purchaser Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(de) an Insolvency Event shall occur with respect to the Servicer;
(f) any material delegation of the Servicer’s duties that is not permitted by Section 6.1;
(g) any financial or other information reasonably requested by the Administrative Agent, any Purchaser Agent or any Purchaser is not provided as requested within a reasonable amount of time following such request;
(h) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of $7,500,000, individually or in the aggregate, and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than sixty (60) consecutive days without a stay of execution;
(i) the failure of the Servicer to make any payment due with respect to any recourse debt or other obligations, which debt or other obligations are in excess of $7,500,000, individually or in the aggregate, or the Performance Guarantoroccurrence of any event or condition that would permit acceleration of such recourse debt or other obligations whether or not waived;
(j) CapitalSource Inc. fails to maintain GAAP stockholders’ equity equal to at least $700,000,000 plus 80% of the proceeds of any equity offerings subsequent to April 8, 2004;
(k) [Reserved];
(l) the Servicer fails in any material respect to comply with the Credit and Collection Policy regarding the servicing of the Collateral;
(m) the Servicer consents or agrees to, or otherwise permits to occur, any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy (after the adoption of same) in whole or in part that could be reasonably expected to have a Material Adverse Effect upon the Collateral, the Administrative Agent, any Purchaser Agent or the Secured Parties, without the prior written consent of the Administrative Agent and each Purchaser Agent;
(n) CSE Mortgage ceases to be the Servicer; or
(eo) the Servicer shall fail fails to deliver maintain the reports described in Section 8.1 of this Indenture and such failure shall continue Asset Loss Reserve for five Business Days. THENany Watchlist Assets; then notwithstanding anything herein to the contrary, so long as any such Servicer Default shall be continuingnot have been remedied within any applicable cure period prior to the date of the Servicer Termination Notice (defined below), the Control Party Administrative Agent, by written notice then given in writing to the Servicer (with a copy to the Backup Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency ) (a “Servicer Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphAgreement.
Appears in 1 contract
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (including without limitation with respect to Collections) as required by this Agreement on or before the date such payment, transfer or deposit is required to be made or given made;
(b) any failure by the Servicer to give instructions or notice to the Administrative Agent as required by this Agreement, or to deliver any required Monthly Report or other Required Reports hereunder on or before the date occurring two Business Days after the date such instruction, notice or report is required to be made or given, as the case may be, under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysAgreement;
(bc) any failure on the part of the Servicer (A) duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any the other Transaction Document Documents to which the Servicer is a party and such failure the same continues unremedied for a period of 30 10 days after the earlier to occur of the date on which the Servicer has actual knowledge of the failure and (i) the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the TrusteeAdministrative Agent and (ii) the date on which the Servicer becomes aware thereof, or (B) duly to the Servicer and the Trustee by the Insurer observe or the Holders of 25% or more of the Aggregate Principal Amount of the Notesperform its obligations under Section 6.4(j);
(cd) any representation and representation, warranty or certification made by the Servicer in this Indenture any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect in any material respect when made made, and has a material and which (if capable of being cured without any adverse impact on the Trustee’s interest in Purchasers or the Pledged Loans and other Pledged Assets and collectibility of the Servicer is not in compliance with such representation or warranty within 30 Business Days Assets) continues to be unremedied for a period of 10 days after the earlier to occur of the date on which the Servicer has actual knowledge of such breach and (i) the date on which written notice of such breach incorrectness requiring that such breach the same to be remedied, remedied shall have been given to the Servicer by the Trustee or to Administrative Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(de) an Insolvency Event shall occur with respect to the Servicer;
(f) any material delegation of the Servicer’s duties that is not permitted by Section 6.1;
(g) any financial or other information reasonably requested by the Administrative Agent or any Purchaser is not provided as requested within a reasonable amount of time following such request;
(h) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of $10,000,000, individually or in the aggregate, and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than 60 consecutive days without a stay of execution;
(i) the failure of the Servicer to make any payment due with respect to any recourse debt or other obligations, which debt or other obligations are in excess of $10,000,000, individually or in the aggregate, or the Performance Guarantoroccurrence of any event or condition that would at such time permit acceleration of such recourse debt or other obligations;
(j) CapitalSource Inc.’s Consolidated Tangible Net Worth at any time is less than the TNW Test Level;
(k) a payment default or other default, termination event or other similar event has occurred and is continuing (beyond any applicable grace period) under any Citibank Facility or under or with respect to any repurchase agreement, securitization or any other facility providing indebtedness for borrowed money, in each case, in an amount greater than $10,000,000 to or for the benefit of CapitalSource Inc. or any of its Subsidiaries (except for those securitizations or other facilities listed on Schedule IX, as the same may be updated from time to time as mutually agreed by the Seller and the Administrative Agent), and at such time such event permits the lender or holder of rights thereunder to terminate commitments, accelerate the obligations owing thereunder or otherwise exercise remedies thereunder; provided that a Servicer Default arising as a result of a default, termination event, margin call or other similar event with respect to a repurchase agreement or series of repurchase agreements shall be deemed to be cured with the effect of being considered to have not occurred, to the extent that either (i) the surrender of the related collateral in whole to (or liquidation of the related collateral in whole by) the repo counterparty under such repurchase agreement (by itself or together with any payments made, or additional collateral provided to, the repo counterparty) constitutes satisfaction in full of the obligations of CapitalSource Inc. and its Subsidiaries thereunder, or (ii) the deficiency amount under such repurchase agreement or series of repurchase agreements after application of collateral proceeds with respect to the sale or liquidation of the related collateral is less than $10,000,000;
(l) the Servicer fails in any material respect to comply with the Credit and Collection Policy regarding the servicing of the Collateral; or
(em) the Servicer shall fail consents or agrees to, or otherwise permits to deliver occur, any amendment, modification, change, supplement or rescission of or to the reports described Credit and Collection Policy (after the adoption of same) in Section 8.1 whole or in part that could be reasonably expected to have a Material Adverse Effect upon the Collateral, the Administrative Agent or the Secured Parties, without the prior written consent of this Indenture and such failure shall continue for five Business Daysthe Administrative Agent. THENthen notwithstanding anything herein to the contrary, so long as any such Servicer Default shall be continuingnot have been remedied within any applicable cure period prior to the date of the Servicer Termination Notice (defined below), the Control Party Administrative Agent, by written notice then given in writing to the Servicer (with a copy to the Backup Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency ) (a “Servicer Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphAgreement.
Appears in 1 contract
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any required payment, transfer or deposit or to give instructions or notice to the Indenture Trustee to make such payment, transfer or deposit on or before the date such payment, transfer or deposit or such instruction or notice is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture Agreement, the Indenture, the 2021-2A SUBI Supplement or the 2021-2A SUBI Servicing Agreement, in an aggregate amount exceeding $50,000, and such which failure remains continues unremedied for two a period of five (5) Business Days; providedDays after the earlier of (i) the date on which notice of such failure, howeverrequiring the same to be remedied, that if shall have been given by registered or certified mail to the Servicer is unable by the Issuer or the Indenture Trustee, or to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysIssuer and the Indenture Trustee by the Required Noteholders and (ii) the actual knowledge of the Servicer thereof;
(b) any failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture Agreement, the Indenture, the 2021-2A SUBI Supplement or the 2021-2A SUBI Servicing Agreement or in any other Transaction Document to which certificate delivered by the Servicer is pursuant to this Agreement, the 2021-2A SUBI Supplement, the 2021-2A SUBI Servicing Agreement or the Indenture, which failure has a party material adverse effect on the interests of the Noteholders (as determined by the Threshold Noteholders) and such failure which continues unremedied for a period of 30 forty-five (45) days after the earlier of (i) the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given by registered or certified mail to the Servicer by the Issuer or the Indenture Trustee, or to the Servicer Servicer, the Issuer and the Indenture Trustee by the Insurer or Threshold Noteholders and (ii) the Holders of 25% or more actual knowledge of the Aggregate Principal Amount of the NotesServicer thereof;
(c) any representation and representation, warranty or certification made by the Servicer in this Indenture Agreement, the Indenture, the 2021-2A SUBI Supplement or the 2021-2A SUBI Servicing Agreement or in any certificate delivered by the Servicer pursuant to this Agreement, the Indenture, the 2021-2A SUBI Supplement or the 2021-2A SUBI Servicing Agreement shall prove to have been incorrect in any material respect when made or deemed made and such failure has a material and adverse impact effect on the Trustee’s interest in Noteholders (as determined by the Pledged Loans Threshold Noteholders) and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days which continues unremedied for a period of forty-five (45) days after the earlier of (i) the date on which a notice specifying such incorrect representation or warranty and requiring the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach same to be remedied, shall have been given by registered or certified mail to the Servicer by the Trustee Issuer or the Indenture Trustee, or to the Servicer Servicer, the Issuer, and the Indenture Trustee by the Insurer or Threshold Noteholders and (ii) the Holders of 25% or more actual knowledge of the Aggregate Principal Amount of the Notes;Servicer thereof; or
(d) an Insolvency Event shall occur with respect to the Servicer; then, in the event of any Servicer or the Performance Guarantor; or
(e) the Servicer shall fail to deliver the reports described in Section 8.1 of this Indenture and such failure shall continue for five Business Days. THENDefault, so long as such a Servicer Default shall be is continuing, the Control Party Indenture Trustee may (and upon the written direction of the Required Noteholders shall), by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, North Carolina Trust and the Insurer and each Rating Agency Back-up Servicer (a “Termination Notice”), may ) (i) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement, the 2021-2A SUBI Supplement, the 2021-2A SUBI Servicing Agreement and the Indenture and (ii) direct the applicable party to terminate any power of attorney granted to the Servicer or any Subservicer and direct such termination being herein called party to execute a “Service Transfer”)new power of attorney to the Indenture Trustee or its designee. The existence of a Servicer Default may be waived with the consent of the Required Noteholders. Notwithstanding the foregoing, a delay in or failure of performance referred to under paragraph (a) above for an additional period of five (5) Business Days after the applicable grace period or referred to under paragraph (b) or (c) above for a period of forty-five (45) days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by a Force Majeure Event. If, following the expiration of such incremental forty-five (45) day grace period in the case of a delay or failure of performance described in paragraph (b) or (c) above, the applicable delay or failure of performance remains outstanding but the Servicer continues to work diligently to remedy such delay or failure of performance, then the grace period shall be extended for a further thirty (30) days upon notice from the Servicer to the Indenture Trustee. The preceding sentences will not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Issuer and the Depositor with an Officer’s Certificate giving prompt notice of such failure or delay, together with a description of its efforts so to perform its obligations. After receipt by the Servicer of a Termination Notice, and effective on the Trustee of such Termination Notice and subject to the terms of Section 12.2(a)Servicing Transfer Date, the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in the Successor Servicer (a “Servicing Transfer”) appointed by the Indenture Trustee (at the written direction of the Required Noteholders if the Successor Servicer is not the Back-up Servicer or such Successor Servicer, as the case may be, without further action on the part of any Person, Indenture Trustee) pursuant to Section 8.02; and, without limitation, the Indenture Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperatecooperate promptly) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsServicing Transfer. The Servicer agrees to reasonably cooperate and to cause each Subservicer to reasonably cooperate (and each Subservicer agrees to cooperate) with the Indenture Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder and (ii) transferring all duties and obligations of the Servicer hereunder to such Successor Servicer, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service and administer the Pledged Loans provided for under this IndentureAgreement, including without limitation all authority over any all Collections which shall on the date of transfer be held by the Servicer for deposit deposit, or which have been deposited by the Servicer, in a Lockbox the Collection Account or other applicable Note Account, or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer to the Successor Servicer all its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer Loans, together with all other records, correspondence and documents necessary for the continued servicing and administration of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Notwithstanding the foregoing, the Servicer shall allow be allowed to retain a copy of all records, correspondence and documents provided to the Successor Servicer access to in compliance with the Servicer’s officers and employeesrecordkeeping policies or Requirements of Law. The predecessor Servicer shall be responsible for all expenses incurred in transferring the servicing duties to the Successor Servicer. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidentialconfidential or give the Successor Servicer access to software or other intellectual property, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphinterests.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Regional Management Corp.)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made or given by the Servicer under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business Days;
(b) failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture or any other Transaction Document to which the Servicer is a party and such failure continues unremedied for a period of 30 days after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(c) any representation and warranty made by the Servicer in this Indenture shall prove to have been incorrect in any material respect when made and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days after the earlier of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(d) an Insolvency Event shall occur with respect to the Servicer or the Performance GuarantorCendant; or
(e) the Servicer shall fail to deliver the reports described in Section 8.1 of this Indenture and such failure shall continue for five Business Days. THEN, so long as such Servicer Default shall be continuing, the Control Party by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency (a “Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraph.
Appears in 1 contract
Servicer Defaults. If any one Any of the following events (each, shall constitute a “Servicer Default”) shall occur and be continuing"SERVICER DEFAULT":
(a) any failure by the Servicer (in its capacity as Servicer) to make any payment, transfer or deposit on required by this Indenture or before any of the date other Transaction Document to be made by it or to give instructions or to give notice to the Trustee, the Administrative Agent, or the Paying Agent (if other than the Administrative Agent) to make such payment, transfer or deposit is required to be made or given by deposit, which failure continues unremedied (A) in the case of payments of interest on the Notes, for five Business Days and (B) in the case of all payments not included in CLAUSE (A) above, for seven Business Days after the date on which an Authorized Officer of the Servicer under the terms has actual knowledge of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business Daysfailure;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture or any other Transaction Document to Document, which failure has a material adverse effect on the Servicer is a party Noteholders of any Series of Notes and such failure continues unremedied for a period of 30 days after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the TrusteeTrustee or the Administrative Agent, or to the Servicer Servicer, the Trustee, and the Trustee Administrative Agent by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesany Noteholder;
(c) the Servicer shall assign its duties under this Indenture, except for delegations to Sub-Servicers contemplated under the Purchase Agreement or as permitted by SECTIONS 3.01(c) and 8.03;
(d) any representation and representation, warranty or certification made by the Servicer hereunder or under any of the other Transaction Document or in any certificate or other document or instrument delivered pursuant to this Indenture or any of the other Transaction Document shall prove to have been incorrect in any material respect when made or delivered and which has a material and adverse impact effect on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within Noteholders of any Series of Notes which material adverse effect continues unremedied for a period of 30 Business Days days after the earlier of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach circumstance, requiring that such breach the same to be remedied, shall have been given to the Servicer by the Trustee or the Administrative Agent, or to the Servicer Servicer, the Trustee, and the Trustee Administrative Agent by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;any Noteholder; or
(de) an Insolvency any Event of Bankruptcy shall occur with respect to the Servicer or Servicer. Upon the Performance Guarantor; or
(e) occurrence and during the Servicer shall fail to deliver the reports described in Section 8.1 continuance of this Indenture and such failure shall continue for five Business Days. THEN, so long as such any Servicer Default shall be continuingor any Event of Default, the Control Party Trustee, at the direction of the Majority Noteholders, shall, by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency Servicer (a “Termination Notice”"TERMINATION NOTICE"), may terminate all of (but not less than all) the rights and obligations of the Servicer as Servicer under this Indenture and in and to the Receivables, the Related Transferred Assets and the proceeds thereof. As soon as possible, and in any event within five Business Days, after an Authorized Officer of the Servicer has obtained knowledge of the occurrence of any Servicer Default, the Servicer shall furnish notice thereof to the Trustee, the Administrative Agent, and the Applicable Rating Agencies, and the Issuer and the Administrative Agent shall promptly upon receipt of such notice furnish notice thereof to each Noteholder. Notwithstanding the foregoing, a delay in or failure in performance referred to in SUBSECTION (a) above for a period of 10 Business Days after the applicable grace period, or in SUBSECTION (b) or (d) above for a period of 30 Business Days after the applicable grace period, shall not (unless such termination being herein called delay or failure continues after such 10 or 30 Business Day period, as applicable) constitute a “Service Transfer”). After receipt Servicer Default if such delay or failure could not have been prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the Trustee public enemy, riots, acts of such Termination Notice and subject war, acts of terrorism, epidemics, flood, embargoes, weather, landslides, fire, earthquakes or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities hereof and of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instrumentsTransaction Documents, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to give the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidentialTrustee, the Successor Servicer shall be required to enter into Administrative Agent, and the Issuer an Officer's Certificate notifying them of such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary failure or permanent injunctive relief delay by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphit.
Appears in 1 contract
Samples: Master Trust Indenture and Security Agreement (Stone Container Corp)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made or given by the Servicer under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business Days;
(b) failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture or any other Transaction Document to which the Servicer is a party and such failure continues unremedied for a period of 30 days after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(c) any representation and warranty made by the Servicer in this Indenture shall prove to have been incorrect in any material respect when made and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days after the earlier of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(d) an Insolvency Event shall occur with respect to the Servicer or the Performance GuarantorCendant; or
(e) the Servicer shall fail to deliver the reports described in Section 8.1 of this Indenture and such failure shall continue for five Business Days. THEN, so long as such Servicer Default shall be continuing, the Control Party by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency (a “Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraph.
Appears in 1 contract
Servicer Defaults. If any one of the following events (each, a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Master Servicer to make deliver (i) any payment, transfer or deposit on or before Daily Report within two Business Days of the date such paymentdue or, transfer or deposit is required to be made or given by the Servicer under the terms of this Indenture and if such failure remains unremedied for two arises from a failure of the Master Servicer's management information system and the Agent has been notified of the occurrence of such management information system failure, within three Business Days; providedDays of the date due or (ii) any Monthly Settlement Statement within three Business Days of the date due, howeverconforming in all material respects to the requirement of Section 4.01 or 4.02, that if as the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business Dayscase may be;
(b) failure by the Master Servicer or any Servicer to (i) make any payment required to be paid by it under Section 2.03 or any other fixed principal, interest or fees payable under any Pooling and Servicing Agreement (it being acknowledged that for such purpose the responsibility of the Master Servicer or such Servicer is limited to payment of amounts actually received) and such failure shall remain unremedied for more than five Business Days or (ii) pay all amounts required to be paid in respect of those payments described in the foregoing clause (i) and pay any other amounts required to be paid by it under any Pooling and Servicing Agreement (it being acknowledged that for such purpose the responsibility of the Master Servicer or such Servicer is limited to payment of amounts actually received) and such failure continues for five Business Days after the earlier to occur of (x) the date upon which a Responsible Officer of the Master Servicer or such Servicer obtains knowledge of such failure or (y) the date on which written notice of such failure, requiring the same to be remedied, shall have been given (1) to the Master Servicer or such Servicer by the Company or the Trustee, or (2) to the Company, the Trustee, the Master Servicer and such Servicer by Holders of Investor Certificates evidencing 25% or more of the Aggregate Invested Amount;
(c) failure on the part of the Master Servicer or any Servicer duly to observe or to perform in any material respect any other of its covenants or agreements of the Servicer set forth in this Indenture any Pooling and Servicing Agreement and that, with respect to any covenants or any other Transaction Document to which the Servicer is a party and such failure agreements not contained in Section 4.07 or 4.08, continues unremedied for a period of more than 30 days after the earlier of (i) the date on which the Master Servicer has actual knowledge of the such failure and (ii) the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Company or the Trustee, or to the Company, to the Trustee, to the Master Servicer and to the Trustee Servicer by any Holder of Investor Certificates or any Agent; provided, that no Servicer Default shall be deemed to occur under this subsection with respect to a failure on the Insurer part of the Master Servicer or a Servicer if the Master Servicer or the Holders Servicer, as the case may be, shall have complied with the provisions of 25% or more of the Aggregate Principal Amount of the NotesSection 5.02(b) with respect thereto;
(cd) any representation and representation, warranty or certification made by the Master Servicer or a Servicer in this Indenture the Pooling and Servicing Agreements or in any certificate delivered pursuant thereto shall prove to have been incorrect in any material respect when made and has or deemed made; provided, that no Servicer Default shall be deemed to occur under this Section 6.01(d)(i) with respect to a material and adverse impact failure on the Trustee’s interest part of the Master Servicer or the Servicer if the Servicer shall have complied with the provisions of Section 5.02(b) with respect thereto;
(i) a court having jurisdiction in the Pledged Loans and other Pledged Assets and premises shall enter a decree or order for relief in respect of the Master Servicer or a Servicer in an involuntary case under any Applicable Insolvency Law, which decree or order is not stayed, or any other similar relief shall be granted under any applicable Federal or state law and shall not be stayed; (ii) an involuntary case is commenced against the Master Servicer or a Servicer under any Applicable Insolvency Law, a decree or order of a court having jurisdiction in compliance with such representation the premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or warranty within 30 Business Days after other officer having similar powers over the earlier Master Servicer or a Servicer or over all or a substantial part of the date on which property of the Master Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, or a Servicer shall have been given entered, an interim receiver, trustee or other custodian of the Master Servicer or a Servicer for all or a substantial part of the property of the Master Servicer or a Servicer is involuntarily appointed or a warrant of attachment, execution or similar process is issued against any substantial part of the property of the Master Servicer or a Servicer and the continuance of any such events in this clause (ii) for 60 days unless dismissed, bonded or discharged; (iii) the Master Servicer or a Servicer shall at its request have a decree or an order for relief entered with respect to it, commence a voluntary case under the Bankruptcy Code or any Applicable Insolvency Law, consent to the Servicer by the Trustee entry of a decree or an order for relief in an involuntary case, or to the Servicer and conversion of an involuntary case to a voluntary case, under any such law, or consent to the Trustee appointment of or taking possession by a receiver, trustee or other custodian of all or a substantial part of its property; (iv) the making by the Insurer Master Servicer or a Servicer of any general assignment for the Holders benefit of 25% creditors; (v) the inability or more failure of the Aggregate Principal Amount Master Servicer or a Servicer generally to pay its debts as such debts become due; or (vi) the Board of Directors of the Notes;
(d) an Insolvency Event shall occur with respect to the Master Servicer or a Servicer adopts any resolution or otherwise authorizes action to approve any of the Performance Guarantorforegoing; or
(ef) there shall have occurred and be continuing (i) a Purchase Termination Event under the Receivables Sale Agreement or (ii) an Early Amortization Event (other than Early Amortization Events set forth in Sectxxx 0.00(x), (x), (x), (x), (x), (x), (x), (x), (x), (x), xxd (s) of the Series 2000-1 Supplement);
(g) the Servicing Agreement shall cease, for any reason, to be in full force and effect or the Master Servicer or any Servicer or any Affiliate of the foregoing shall fail so assert in writing;
(i) a default in the payment when due (subject to deliver any applicable grace period), whether by acceleration or otherwise, of any Indebtedness of the reports described Master Servicer or a Servicer or any of their respective Subsidiaries having an outstanding aggregate principal amount in excess of the lesser of (A) (1) 5% of Consolidated Tangible Net Worth for the then most recently ended Fiscal Period, individually or (2) 10% of Consolidated Tangible Net Worth for the then most recently ended Fiscal Period, in the aggregate and (B) $75,000,000, or a default shall occur in the performance or observance of any obligation or condition with respect to such Indebtedness and (ii) in either case, the holder or holders of such Indebtedness, or any trustee or agent for such holders, has caused the maturity of such Indebtedness to be accelerated or such Indebtedness is thereby required to be repaid, redeemed, purchased, defeased or is otherwise due and payable prior to its expressed maturity (for purposes of this subsection, the terms Consolidated Tangible Net Worth and Fiscal Period shall have the meanings set forth in Section 8.1 8.03 of this Indenture and such failure shall continue for five Business Days. THENthe Series 2000-1 Supplement); then, in the event of any Servicer Default, so long as such the Servicer Default shall be continuingnot have been remedied or waived, the Control Party Company (with the consent of the Trustee) may, the Company at the direction of the Trustee shall, and the Company and the Trustee shall, at the written direction of the Holders of Investor Certificates evidencing more than 50% of the Aggregate Invested Amount voting as a single class, by notice then given in writing to the Servicer, Master Servicer and the Swap Counterparty, the Issuer, the Trustee, the Insurer Servicers and to each Rating Agency (a “"Termination Notice”"), may terminate all or any part of the rights and obligations of the Master Servicer or any Servicer, as applicable, under the Pooling and Servicing Agreements. Notwithstanding anything to the contrary in this Section 6.01, a delay in or failure of performance referred to under clause (b) above for so long as no funds have been remitted to the Master Servicer, a Servicer or the Company or a delay in or failure of performance referred to under this Indenture clause (a) above for a period of 5 Business Days after the applicable grace period shall not constitute a Servicer Default, if such termination being herein called delay or failure could not have been prevented by the exercise of reasonable diligence by the applicable Servicer and such delay or failure was caused by a “Service Transfer”)Force Majeure Delay. After receipt by the Master Servicer or a Servicer of a Termination Notice, and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until on the date that a Successor Master Servicer or Successor Servicer, as the case may be, shall have been appointed by the Company and the Trustee pursuant to Section 12.2 and 6.02 hereof, all authority and power of the Master Servicer or such Servicer, as the case may be, under this Indenture any Pooling and Servicing Agreement to the extent specified in such Termination Notice shall pass to and be vested in the Trustee Successor Master Servicer (a "Master Servicer Transfer") or Successor Servicer (a "Service Transfer"), as the case may be, and, without limitation, such Successor Master Servicer or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby directed, authorized and empowered (upon the failure refusal of the Master Servicer or the Servicer to cooperate) to execute and deliver, on behalf of the Master Servicer or such Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure refusal of the Master Servicer or such Servicer to execute or to deliver such documents or instruments, and to do and to accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer Master Servicer Transfer or Service Transfer, as the case may be, and the Successor Master Servicer or Successor Servicer shall incur no liability in connection with effecting such Master Servicer Transfer or Service Transfer. Each of servicing rights. The the Master Servicer and the Servicer agrees to cooperate with the Company and the Trustee and such Successor Master Servicer or Successor Servicer in effecting the termination of the responsibilities and rights of the Master Servicer or the Servicer to conduct servicing its duties hereunder, including including, without limitation limitation, the transfer to such the Successor Master Servicer or Successor Servicer, as the case may be, of all authority of the Master Servicer to coordinate the Servicing of all Receivables or all authority of such Servicer to service the Pledged Loans Serviced Receivables, as the case may be, provided for under this Indenturethe Pooling and Servicing Agreements (including, including in the case of such Servicer, without limitation limitation, all authority over any all Collections which that shall on the date of transfer be held by the Servicer for deposit deposit, or that have been deposited by such Servicer, in a Lockbox Account the Collection Account, or which that shall thereafter be received by the Servicer with respect to the Pledged LoansServiced Receivables), and in assisting the Successor Master Servicer in enforcing all rights under this Indenture including, without limitation, allowing the or Successor Servicer’s personnel access to . Upon a Master Servicer Transfer or Service Transfer, the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The terminated Master Servicer or Servicer shall promptly transfer (x) assemble all of its electronic documents, instruments and other records relating (including credit files, licenses (to the Pledged Loans extent transferable), rights, copies of all relevant computer programs and any necessary licenses (to the extent transferable) for the use thereof, related material, computer tapes, disks, cassettes and data) that (i) evidence or record Receivables sold and assigned to the Trust and (ii) are otherwise necessary to enable a Successor Master Servicer or Successor Servicer, as the case may be, to coordinate servicing of all such Receivables and to, in the case of a Successor Master Servicer, prepare and deliver Daily Reports and Monthly Settlement Statements, (iii) are otherwise necessary to enable a Successor Master Servicer or Successor Servicer to effect the immediate Collection of such Receivables, with or without the participation of the Seller, Master Servicer or Servicer and (y) deliver to the extent permitted by law or license (to the extent transferable) the use of all of the foregoing documents, instruments and other records to such Successor Master Servicer or Successor Servicer at a place designated by such Successor Master Servicer or Successor Servicer; provided, however, that neither the Master Servicer nor such Servicer shall be required, to the extent it has an ownership interest in any electronic records, computer software or licenses, to transfer, assign, set-over or otherwise convey such ownership interests to the Successor Master Servicer in or Successor Servicer. In recognition of the terminated Master Servicer's or Servicer's need to have access to any such electronic form as the documents, instruments and other records that may be transferred to a Successor Master Servicer or Successor Servicer may reasonably request hereunder, whether as a result of its continuing responsibility as a Servicer of accounts receivable that are not sold and shall promptly transfer assigned to the Trust or otherwise, such Successor Master Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the or Successor Servicer shall reasonably request. The provide to such terminated Master Servicer or Servicer reasonable access to such documents, instruments and other records transferred by such terminated Master Servicer or Servicer to it in connection with any activity arising in the ordinary course of the terminated Master Servicer's or Servicer's business; provided that the terminated Master Servicer or Servicer shall allow not disrupt or otherwise interfere with the Successor Master Servicer or Successor Servicer's use of and access to the Servicer’s officers such documents, instruments and employeesother records. To the extent that compliance with this Section 12.1 6.01 shall require the terminated Master Servicer or Servicer to disclose to the Successor Master Servicer or Successor Servicer information of any kind which that the terminated Master Servicer or Servicer reasonably deems to be confidential, the Successor Master Servicer or Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the terminated Master Servicer or Servicer shall reasonably deem necessary to protect its interest interests. All costs and as expenses incurred by the terminated Master Servicer or Servicer and the Trustee in connection with any Master Servicer Transfer or Service Transfer shall be satisfactory in form for the account of the terminated Master Servicer or Servicer and substance to the Successor Servicer. The Servicer hereby consents extent any costs or expenses incurred by the Trustee are not so paid, the Trustee shall be entitled to be paid such items from amounts that would otherwise be distributable to the entry against it Company under Article III of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphPooling Agreement.
Appears in 1 contract
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any required payment, transfer or deposit or to give instructions or notice to the Indenture Trustee to make such payment, transfer or deposit on or before the date such payment, transfer or deposit or such instruction or notice is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture Agreement, the Indenture, the 2018-2A SUBI Supplement or the 2018-2A SUBI Servicing Agreement, in an aggregate amount exceeding $50,000, and such which failure remains continues unremedied for two a period of five (5) Business Days; providedDays after the earlier of (i) the date on which notice of such failure, howeverrequiring the same to be remedied, that if shall have been given by registered or certified mail to the Servicer is unable by the Issuer or the Indenture Trustee, or to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysIssuer and the Indenture Trustee by the Required Noteholders and (ii) the actual knowledge of the Servicer thereof;
(b) any failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture Agreement, the Indenture, the 2018-2A SUBI Supplement or the 2018-2A SUBI Servicing Agreement or in any other Transaction Document to which certificate delivered by the Servicer is pursuant to this Agreement, the 2018-2A SUBI Supplement, the 2018-2A SUBI Servicing Agreement or the Indenture, which failure has a party material adverse effect on the interests of the Noteholders (as determined by the Threshold Noteholders) and such failure which continues unremedied for a period of 30 forty-five (45) days after the earlier of (i) the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given by registered or certified mail to the Servicer by the Issuer or the Indenture Trustee, or to the Servicer Servicer, the Issuer and the Indenture Trustee by the Insurer or Threshold Noteholders and (ii) the Holders of 25% or more actual knowledge of the Aggregate Principal Amount of the NotesServicer thereof;
(c) any representation and representation, warranty or certification made by the Servicer in this Indenture Agreement, the Indenture, the 2018-2A SUBI Supplement or the 2018-2A SUBI Servicing Agreement or in any certificate delivered by the Servicer pursuant to this Agreement, the Indenture, the 2018-2A SUBI Supplement or the 2018-2A SUBI Servicing Agreement shall prove to have been incorrect in any material respect when made or deemed made and such failure has a material and adverse impact effect on the Trustee’s interest in Noteholders (as determined by the Pledged Loans Threshold Noteholders) and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days which continues unremedied for a period of forty-five (45) days after the earlier of (i) the date on which a notice specifying such incorrect representation or warranty and requiring the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach same to be remedied, shall have been given by registered or certified mail to the Servicer by the Trustee Issuer or the Indenture Trustee, or to the Servicer Servicer, the Issuer, and the Indenture Trustee by the Insurer or Threshold Noteholders and (ii) the Holders of 25% or more actual knowledge of the Aggregate Principal Amount of the Notes;Servicer thereof; or
(d) an Insolvency Event shall occur with respect to the Servicer; then, in the event of any Servicer or the Performance Guarantor; or
(e) the Servicer shall fail to deliver the reports described in Section 8.1 of this Indenture and such failure shall continue for five Business Days. THENDefault, so long as such a Servicer Default shall be is continuing, the Control Party Indenture Trustee may (and upon the written direction of the Required Noteholders shall), by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, North Carolina Trust and the Insurer and each Rating Agency Back-up Servicer (a “Termination Notice”), may ) (i) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement, the 2018-2A SUBI Supplement, the 2018-2A SUBI Servicing Agreement and the Indenture and (ii) direct the applicable party to terminate any power of attorney granted to the Servicer or any Subservicer and direct such termination being herein called party to execute a “Service Transfer”)new power of attorney to the Indenture Trustee or its designee. The existence of a Servicer Default may be waived with the consent of the Required Noteholders. After receipt by the Servicer of a Termination Notice, and effective on the Trustee of such Termination Notice and subject to the terms of Section 12.2(a)Servicing Transfer Date, the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in the Successor Servicer (a “Servicing Transfer”) appointed by the Indenture Trustee (at the written direction of the Required Noteholders if the Successor Servicer is not the Back-up Servicer or such Successor Servicer, as the case may be, without further action on the part of any Person, Indenture Trustee) pursuant to Section 8.02; and, without limitation, the Indenture Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperatecooperate promptly) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsServicing Transfer. The Servicer agrees to reasonably cooperate and to cause each Subservicer to reasonably cooperate (and each Subservicer agrees to cooperate) with the Indenture Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder and (ii) transferring all duties and obligations of the Servicer hereunder to such Successor Servicer, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service and administer the Pledged Loans provided for under this IndentureAgreement, including without limitation all authority over any all Collections which shall on the date of transfer be held by the Servicer for deposit deposit, or which have been deposited by the Servicer, in a Lockbox the Collection Account or other applicable Note Account, or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer to the Successor Servicer all its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer Loans, together with all other records, correspondence and documents necessary for the continued servicing and administration of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Notwithstanding the foregoing, the Servicer shall allow be allowed to retain a copy of all records, correspondence and documents provided to the Successor Servicer access to in compliance with the Servicer’s officers and employeesrecordkeeping policies or Requirements of Law. The predecessor Servicer shall be responsible for all expenses incurred in transferring the servicing duties to the Successor Servicer. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidentialconfidential or give the Successor Servicer access to software or other intellectual property, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphinterests.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Regional Management Corp.)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing, it shall be a "Servicer Default" hereunder:
(a) any failure by the Servicer or Guarantor of the Servicer's Performance (if Lanixx Xxxlections is the Servicer) to (i) make any payment, transfer or deposit on of principal of any Loan when and as required by this Agreement, or before the date such (ii) make any payment, transfer or deposit is of any other amount when and as required to be made or given by this Agreement, which failure under this clause (ii) shall remain unremedied for two (2) Business Days after the due date thereof;
(b) any failure by the Servicer under or Guarantor of the terms of Servicer's Performance (if Lanixx Xxxlections is the Servicer) to deliver any Settlement Report as and when required by this Indenture and such Agreement, which failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five three (3) Business Days;
(bc) any failure on the part of the Servicer or Guarantor of the Servicer's Performance (if Lanixx Xxxlections is the Servicer) duly to observe or perform in any respect any other covenants or agreements affirmative covenant required to be observed by it in any of the Transaction Documents, which failure remains unremedied for five (5) Business Days;
(d) any failure on the part of the Servicer set forth or Guarantor of the Servicer's Performance (if Lanixx Xxxlections is the Servicer) duly to observe or perform in this Indenture any respect when due any negative covenant required to be observed by it in any of the Transaction Documents;
(e) any representation, warranty or certification made by the Servicer (if Lanixx Xxxlections is the Servicer) or Guarantor of the Servicer's Performance in any other Transaction Document to which the Servicer it is a party and or in any certificate delivered pursuant to any such failure continues unremedied for a period of 30 days after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(c) any representation and warranty made by the Servicer in this Indenture Transaction Document shall prove to have been incorrect in any material respect when made and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days after the earlier of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesmade;
(df) an Insolvency a Lanixx Xxxdit Event shall occur or any bankruptcy, insolvency or similar event occurs with respect to the Servicer or the Performance Guarantor(if other than Lanixx Xxxlections); or
(eg) any change in the Servicer shall fail to deliver the reports described in Section 8.1 of this Indenture and such failure shall continue for five Business Days. THEN, so long as such Servicer Default shall be continuing, the Control Party by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency (a “Termination Notice”), may terminate all of the rights and obligations control of the Servicer as Servicer under this Indenture (such termination being herein called which takes the form of either a “Service Transfer”). After receipt by merger or consolidation in which the Servicer and is not the Trustee of such Termination Notice and subject surviving entity or a Change in Control with respect to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf Guarantor of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to 's Performance (if Lanixx Xxxlections is the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraph).
Appears in 1 contract
Samples: Credit and Security Agreement (Lanier Worldwide Inc)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:, it shall constitute a servicer default (each such event, a "Servicer Default"):
(a) any failure by the Master Servicer to make any payment, transfer or deposit on or before as required by this Agreement including, without limitation, delivery of any Settlement Report and, such failure shall remain unremedied for two (2) Business Days after the date such payment, transfer or deposit is required earliest to be made or occur of (A) written notice thereof shall have been given by the Agent to the Master Servicer under or (B) a Senior Officer of the terms Master Servicer shall have actual knowledge thereof or should have had knowledge thereof if such Senior Officer had exercised reasonable care in the performance of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer his or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business Daysher duties;
(b) any failure on the part of the Master Servicer duly to observe or perform any other covenants term, covenant or agreements agreement of the Master Servicer set forth in this Indenture Agreement or any other the Sale Agreement or to give instructions or notice to the Agent as required by the Transaction Document to Documents, which the Servicer is a party and such failure continues unremedied for a period of 30 five (5) days after the earlier first to occur of the date on which the Servicer has actual knowledge of the failure and (i) the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Master Servicer by the Trustee, or to Agent and (ii) the Servicer and the Trustee by the Insurer or the Holders of 25% or more date on which a Senior Officer of the Aggregate Principal Amount Master Servicer shall have actual knowledge thereof or should have had knowledge thereof if such Senior Officer had exercised reasonable care in the performance of the Noteshis or her duties;
(c) any representation and representation, warranty or certification made by the Master Servicer (or any of its officers) in this Indenture Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been false or incorrect in any material respect when made and has a material and adverse impact on made; provided that the Trustee’s interest materiality qualification in the Pledged Loans and other Pledged Assets and the Servicer is preceding clause shall not in compliance be applicable with such respect to any representation or warranty within 30 Business Days after the earlier of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesitself contains a materiality qualification;
(d) an Insolvency An Event of Bankruptcy shall occur have occurred and remain continuing with respect to the Master Servicer;
(e) any Change in Control with respect to the Master Servicer shall occur;
(f) any change by the Master Servicer in the Credit and Collection Policy which shall materially adversely affect the collectibility of the Receivables without the prior written consent of the Agent;
(g) [Reserved];
(h) Any default under any other agreement or instrument relating to the purchase of receivables in an aggregate amount in excess of $5,000,000 of the Master Servicer, or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such default (i) is to permit the termination of the commitment of any party to such agreement or instrument to purchase receivables or the Performance Guarantorright of the Master Servicer to reinvest in receivables the principal amount paid by any party to such agreement or instrument for its interest in receivables or (ii) is to terminate such commitment or right;
(i) [Reserved]; or
(ej) An Event of Default (as defined in the Servicer Credit Agreement) shall fail have occurred. Notwithstanding anything herein to deliver the reports described in Section 8.1 of this Indenture and such failure shall continue for five Business Days. THENcontrary, so long as any such Servicer Default shall be continuingnot have been remedied, the Control Party Agent, by written notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency Master Servicer (a “"Termination Notice”"), may terminate all of the rights and obligations of the Master Servicer as Master Servicer under this Indenture (such termination being herein called Agreement and appoint a “Service Transfer”). After receipt by the successor Master Servicer and the Trustee of such Termination Notice and subject satisfactory to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested Agent (in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphAgent's sole discretion).
Appears in 1 contract
Samples: Receivables Purchase Agreement (Cadmus Communications Corp/New)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Master Servicer to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made or given by the Servicer under the terms of this Indenture Agreement or a Series Supplement and such failure remains unremedied for two Business Days; provided, however, that if the Master Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Master Servicer’s control, the grace period shall be extended to five Business Days;
(b) failure on the part of the Master Servicer duly to observe or perform any other covenants or agreements of the Master Servicer set forth in this Indenture Agreement, a Series Supplement or any other Transaction Facility Document to which the Master Servicer is a party and such failure continues unremedied for a period of 30 20 days after the earlier of the date on which the Master Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Trustee, or to the Master Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesany Noteholder;
(c) any representation and warranty made by the Master Servicer in this Indenture Agreement shall prove to have been incorrect in any material respect when made and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Master Servicer is not in compliance with such representation or warranty within 30 ten Business Days after the earlier of the date on which the Master Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Master Servicer by the Trustee or to the Master Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesany Noteholder;
(d) an Insolvency Event shall occur with respect to the Master Servicer or the Performance Guarantor; orCendant;
(e) the Master Servicer shall fail fails to deliver reports to the reports described Trustee in accordance with Section 8.1 6.1 of this Indenture Agreement and such failure shall continue remains unremedied for five Business Days; or
(f) the occurrence of any event which is designated as a Servicer Default under any Series Supplement. THEN, so long as such Master Servicer Default shall be continuing, either the Control Party Trustee, or the Majority Holders of all Notes by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer Master Servicer and each Rating Agency (and to the Trustee if given by the Majority Holders) (a “Termination Notice”), may terminate all of the rights and obligations of the Master Servicer as Master Servicer under this Indenture Agreement (such termination being herein called a “Service Transfer”). After receipt by the Master Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a10.2(a), the Trustee shall automatically assume the responsibilities of the Master Servicer hereunder until the date that a Successor Master Servicer shall have been appointed pursuant to Section 12.2 10.2 and all authority and power of the Master Servicer under this Indenture Agreement shall pass to and be vested in the Trustee or such Successor Master Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) Majority Holders is hereby authorized and empowered (upon the failure of the Master Servicer to cooperate) to execute and deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Master Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Master Servicer agrees to cooperate with the Trustee and such Successor Master Servicer in effecting the termination of the responsibilities and rights of the Master Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Master Servicer of all authority of the Master Servicer to service the Pledged Loans provided for under this IndentureAgreement, including without limitation all authority over any Collections which shall on the date of transfer be held by the Master Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Master Servicer with respect to the Pledged Loans, and in assisting the Successor Master Servicer in enforcing all rights under this Indenture Agreement including, without limitation, allowing the Successor Master Servicer’s personnel access to the Master Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Master Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Master Servicer in such electronic form as the Successor Master Servicer may reasonably request and shall promptly transfer to the Successor Master Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Master Servicer shall reasonably request. The Master Servicer shall allow the Successor Master Servicer access to the Master Servicer’s officers and employees. To the extent that compliance with this Section 12.1 10.1 shall require the Master Servicer to disclose to the Successor Master Servicer information of any kind which the Master Servicer reasonably deems to be confidential, the Successor Master Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Master Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Master Servicer. The Master Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Master Servicer with the provisions of this paragraph.
Appears in 1 contract
Samples: Master Indenture and Servicing Agreement (Cendant Corp)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur (regardless of the reason therefor) and be continuing, then, and in any such event, the Administrative Agent may, by delivery of notice to the Servicer and the Borrower, terminate the servicing responsibilities of the Servicer hereunder, without demand, protest or further notice of any kind, all of which are hereby waived by the Servicer and the Borrower. Upon the delivery of any such notice, all authority and power of the Servicer under this Agreement shall pass to and be vested in a successor Servicer acting pursuant to Section 4.01; provided that notwithstanding anything to the contrary herein, the Servicer agrees to continue to follow the procedures set forth in Section 4.02 with respect to Collections on the Transferred Receivables until a successor Servicer has assumed the responsibilities and obligations of the Servicer:
(ai) any failure by the Servicer shall fail to make pay any payment, transfer payment or deposit on or before hereunder when and as the date such paymentsame shall become due and payable, transfer or deposit is required to be made or given by the Servicer under the terms of this Indenture and such failure remains shall continue unremedied for one Business Day;
(ii) any representation or warranty made or deemed made by or on behalf of the Servicer in this Agreement or any Loan Document, or in any certificate, Borrowing Base Report or other document furnished pursuant to or in connection with this Agreement or any Loan Document, shall prove to have been false or misleading in any material respect when so made or deemed made, and, if capable of being remedied, such event shall continue unremedied for two Business Days; provided, however, that if ;
(iii) the Servicer is unable or the Borrower shall fail to make a payment, transfer or deposit deliver any Borrowing Base Report when due pursuant to Section 8.01(k);
(iv) the Servicer shall fail to deliver when due any of the receivables reports (other than Borrowing Base Reports) required to be delivered pursuant to Section 4.04 or any other report related to the Transferred Receivables as required by the other Loan Documents, and such failure is as a result shall continue unremedied for five Business Days after the earlier of circumstances beyond (i) the Servicer’s control, knowledge of such failure and (ii) the grace period date on which written notice of such failure shall be extended have been given to five Business Daysthe Servicer by the Administrative Agent;
(bv) failure on the part of the Servicer duly shall fail to observe or perform any other covenants material covenant, condition or agreements of the Servicer set forth agreement contained in this Indenture Agreement or any other Transaction Loan Document to (other than those which the constitute a Servicer is a party Default under another clause of this Section 4.06), and such failure continues shall continue unremedied for a period of 30 days after the earlier of (i) the date on which the Servicer has actual Servicer’s knowledge of the such failure and (ii) the date on which written notice of such failure, requiring the same to be remedied, failure shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the NotesAdministrative Agent;
(cvi) any representation and warranty made by the Servicer in this Indenture shall prove to have been incorrect in any material respect when made and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days after the earlier of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(d) an Insolvency Event shall occur with respect to the Servicer, (a) any event or condition occurs that (A) results in any Material Indebtedness of the Servicer becoming due prior to its scheduled maturity or that (B) enables or permits (all applicable grace periods having expired) the Performance Guarantor; or
holder or holders of any such Material Indebtedness or any trustee or agent on its or their behalf to cause any such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity or (eb) the Servicer shall fail to deliver pay the reports described principal of any such Material Indebtedness at the stated final maturity thereof; provided that this clause (vi) shall not apply to secured Indebtedness that (x) becomes due in Section 8.1 whole or in part as a result of this Indenture the voluntary sale or transfer of the property or assets securing such Indebtedness or as a result of any other customary mandatory prepayment events, and (y) is timely repaid as and to the extent required by the agreements governing such failure shall continue for five Business Days. THEN, so long as such Servicer Default Indebtedness;
(vii) an involuntary proceeding shall be continuingcommenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) liquidation, the Control Party by notice then given reorganization or other relief in writing to respect of the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency (or of a “Termination Notice”), may terminate all substantial part of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power assets of the Servicer under this Indenture shall pass to and be vested in the Trustee Bankruptcy Code, or such Successor Servicerany other Federal, as state or foreign bankruptcy, insolvency, receivership or similar law, (ii) the case may beappointment of a liquidator, without further action on receiver, administrator, administrative receiver, compulsory manager, trustee, custodian, sequestrator, conservator or other similar official for the Servicer or for a substantial part of any Person, and, without limitation, the Trustee at the direction assets of the Control Party Servicer or (which authorization is coupled with iii) the winding up or liquidation of the Servicer; and such proceeding or petition shall continue undismissed for 60 days or an interest order or decree approving or ordering any of the foregoing shall be entered;
(viii) the Servicer shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under the Bankruptcy Code or any Federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and is irrevocableappropriate manner, any proceeding or the filing of any petition described in clause (vii) is hereby authorized and empowered above, (upon iii) apply for or consent to the appointment of an administrator, administrative receiver, compulsory manager, receiver, trustee, custodian, sequestrator, conservator or similar official for the Servicer or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(ix) the Servicer shall admit in writing its inability or fail generally to pay its debts as they become due;
(x) the failure of the Servicer to cooperatepay one or more final judgments aggregating in excess of $5,000,000 (to the extent not covered by insurance) which judgments are not discharged or effectively waived or stayed for a period of 45 days, or any action shall be legally taken by a judgment creditor to execute and deliver, on behalf of the Servicer, as attorney-in-fact levy upon assets or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes properties of such transfer of servicing rights. The Servicer agrees Originator to cooperate enforce any such judgments that individually or in the aggregate exceed $5,000,000;
(xi) any event shall have occurred that, alone or together with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderother events, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in has a Lockbox Account or which shall thereafter be received by the Servicer Material Adverse Effect with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access ability to perform its obligations pursuant to the Servicer’s premises for Loan Documents;
(xii) a “Termination Event” or the purpose of collecting payments on “Termination Date” under the Pledged Loans made at such premises. The Receivables Transfer Agreement shall have occurred;
(xiii) the Servicer shall promptly transfer assign or purport to assign any of its electronic records relating to obligations hereunder without the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing prior written consent of the Pledged Loans Administrative Agent;
(xiv) a Change in the manner and at such times as the Successor Servicer Control shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information occur; or
(xv) any material provision of any kind Loan Document to which the Servicer reasonably deems is a party shall terminate in whole or in part (except in accordance with its terms), or shall cease to be confidentialvalid, binding and enforceable in accordance with its terms against the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as Servicer, or the Servicer shall deem necessary assert in writing, or engage in any action or inaction based on any such assertion, that any provision of any Loan Document has ceased to protect be or otherwise is not valid, binding and enforceable in accordance with its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphterms.
Appears in 1 contract
Samples: Credit and Security Agreement (Basic Energy Services Inc)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (including without limitation with respect to Collections) as required by this Agreement on or before the date such payment, transfer or deposit is required to be made or given made;
(b) any failure by the Servicer to give instructions or notice to the Administrative Agent as required by this Agreement, or to deliver any required Monthly Report or other Required Reports hereunder on or before the date occurring two Business Days after the date such instruction, notice or report is required to be made or given, as the case may be, under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysAgreement;
(bc) any failure on the part of the Servicer (A) duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any the other Transaction Document Documents to which the Servicer is a party and such failure the same continues unremedied for a period of 30 10 days after the earlier to occur of the date on which the Servicer has actual knowledge of the failure and (i) the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the TrusteeAdministrative Agent and (ii) the date on which the Servicer becomes aware thereof, or (B) duly to the Servicer and the Trustee by the Insurer observe or the Holders of 25% perform its obligations under Section 5.4(o) or more of the Aggregate Principal Amount of the NotesSection 6.4(j);
(cd) any representation and representation, warranty or certification made by the Servicer in this Indenture any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect in any material respect when made made, and has a material and which (if capable of being cured without any adverse impact on the Trustee’s interest in Purchasers or the Pledged Loans and other Pledged Assets and collectibility of the Servicer is not in compliance with such representation or warranty within 30 Business Days Assets) continues to be unremedied for a period of 10 days after the earlier to occur of the date on which the Servicer has actual knowledge of such breach and (i) the date on which written notice of such breach incorrectness requiring that such breach the same to be remedied, remedied shall have been given to the Servicer by the Trustee or to Administrative Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(de) an Insolvency Event shall occur with respect to the Servicer;
(f) any material delegation of the Servicer’s duties that is not permitted by Section 6.1;
(g) any financial or other information reasonably requested by the Administrative Agent or any Purchaser is not provided as requested within a reasonable amount of time following such request;
(h) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of $10,000,000, individually or in the aggregate, and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than 60 consecutive days without a stay of execution;
(i) the failure of the Servicer to make any payment due with respect to any recourse debt or other obligations, which debt or other obligations are in excess of $10,000,000, individually or in the aggregate, or the Performance Guarantoroccurrence of any event or condition that would at such time permit acceleration of such recourse debt or other obligations;
(j) CapitalSource Inc.’s Consolidated Tangible Net Worth is less than the TNW Test Level;
(k) a payment default or other default, termination event or other similar event has occurred and is continuing (beyond any applicable grace period) under any Other CapitalSource Facilities or under or with respect to any repurchase agreement, securitization or any other facility providing indebtedness for borrowed money, in each case, in an amount greater than $10,000,000 to or for the benefit of CapitalSource Inc. or any of its Subsidiaries (except for those securitizations or other facilities listed on Schedule VII, as the same may be updated from time to time as mutually agreed by the Seller and the Administrative Agent), and at such time such event permits the lender or holder of rights thereunder to terminate commitments, accelerate the obligations owing thereunder or otherwise exercise remedies thereunder; provided that a Servicer Default arising as a result of a default, termination event, margin call or other similar event with respect to a repurchase agreement or series of repurchase agreements shall be deemed to be cured with the effect of being considered not to have occurred, to the extent that either (i) the surrender of the related collateral in whole to (or liquidation of the related collateral in whole by) the repo counterparty under such repurchase agreement (by itself or together with any payments made, or additional collateral provided to, the repo counterparty) constitutes satisfaction in full of the obligations of CapitalSource Inc. and its Subsidiaries thereunder, or (ii) the deficiency amount under such repurchase agreement or series of repurchase agreements after application of collateral proceeds with respect to the sale or liquidation of the related collateral is less than $10,000,000;
(l) the Servicer fails in any material respect to comply with the Credit and Collection Policy regarding the servicing of the Collateral; or
(em) the Servicer shall fail consents or agrees to, or otherwise permits to deliver occur, any amendment, modification, change, supplement or rescission of or to the reports described Credit and Collection Policy (after the adoption of same) in Section 8.1 whole or in part that could be reasonably expected to have a Material Adverse Effect upon the Collateral, the Administrative Agent or the Secured Parties, without the prior written consent of this Indenture and such failure shall continue for five Business Daysthe Administrative Agent. THENthen notwithstanding anything herein to the contrary, so long as any such Servicer Default shall be continuingnot have been remedied within any applicable cure period prior to the date of the Servicer Termination Notice (defined below), the Control Party Administrative Agent, by written notice then given in writing to the Servicer (with a copy to the Backup Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency ) (a “Servicer Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphAgreement.
Appears in 1 contract
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made or given by the Servicer under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business Days;
(b) failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture or any other Transaction Facility Document to which the Servicer is a party and such failure continues unremedied for a period of 30 20 days after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Insurer any Noteholder or the Holders of 25% or more of the Aggregate Principal Amount of the NotesDeal Agent;
(c) any representation and warranty made by the Servicer in this Indenture or any other Facility Document to which the Servicer is a party shall prove to have been incorrect in any material respect when made and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and or other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 ten Business Days after the earlier of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer any Noteholder or the Holders of 25% or more of the Aggregate Principal Amount of the NotesDeal Agent;
(d) an Insolvency Event shall occur with respect to the Servicer or the Performance Guarantor; orParent Corporation;
(e) the Servicer shall fail fails to deliver reports to the reports described Trustee in accordance with Section 8.1 8.2 of this Indenture and such failure shall continue remains unremedied for five Business Days. ;
(f) any Indebtedness (as defined in the Revolving Credit Agreement) of the Parent Corporation or any of its Material Subsidiaries (as defined in the Revolving Credit Agreement) exceeding $50,000,000 in the aggregate, is accelerated after default beyond any applicable grace period provided with respect thereto;
(g) the Servicer fails to deliver reports to the Deal Agent in accordance with Section 8.6 of this Indenture and such failure remains unremedied for five (5) Business Days;
(h) so long as WCF is the Servicer, the breach by the Parent Corporation or any of its Affiliates of any covenant under the Revolving Credit Agreement to the extent such 91 covenant requires compliance by the Parent Corporation or its Affiliates with a leverage ratio, an interest coverage ratio, or a minimum EBITDA level, whether or not such breach is waived pursuant to the terms of the Revolving Credit Agreement, THEN, so long as such Servicer Default shall be continuing, either the Control Party Trustee, or the Majority Facility Investors of all Series 2008-A Notes by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer Servicer and each Rating Agency (and to the Trustee if given by the Majority Facility Investors) (a “Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) Majority Facility Investors is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox the Control Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraph.
Appears in 1 contract
Samples: Amended and Restated Indenture and Servicing Agreement (Travel & Leisure Co.)
Servicer Defaults. If any one of the following events (each, a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Master Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to the terms of this Agreement or any Supplement on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer Agreement or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business Daysany Supplement;
(b) failure on the part of the Master Servicer duly to observe or perform in any material respect any other covenants or agreements of the Master Servicer set forth in this Indenture Agreement or any other Transaction Document to Supplement which has an Adverse Effect on the Servicer is a party interests hereunder of the Investor Certificateholders of any Series or Class and such failure which continues unremedied for a period of 30 60 days after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, and stated to be a "Notice of Servicer Default," shall have been given to the Master Servicer by the Trustee, or to the Master Servicer and the Trustee by the Insurer or the Holders of Investor Certificates evidencing more than 25% or more of the Aggregate Principal Investor Amount (or, with respect to any such failure that does not relate to all Series, 25% of the aggregate Investor Amount of all Series to which such failure relates); or the NotesMaster Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.02 or 8.07, and a Responsible Officer of the Trustee has actual knowledge of such delegation and such delegation continues unremedied for 15 days after the date on which written notice thereof, requiring the same to be remedied, and stated to be a "Notice of Servicer Default," shall have been given to the Master Servicer by the Trustee, or to the Master Servicer and the Trustee by Holders of Investor Certificates evidencing more than 25% of the Aggregate Investor Amount;
(c) any representation and representation, warranty or certification made by the Master Servicer in this Indenture Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has an Adverse Effect on the rights of the Investor Certificateholders of any Series or Class and which continues to be incorrect in any material respect when made and has for a material and adverse impact on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days period of 60 days after the earlier of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach failure, requiring that such breach the same to be remedied, and stated to be a "Notice of Servicer Default," shall have been given to the Master Servicer by the Trustee Trustee, or to the Master Servicer and the Trustee by the Insurer or the Holders of Investor Certificates evidencing more than 25% or more of the Aggregate Principal Investor Amount (or, with respect to any such representation, warranty or certification that does not relate to all Series, 25% of the aggregate Investor Amount of the Notes;all Series to which such representation, warranty or certification relates); or
(d) an Insolvency Event the Master Servicer shall occur with respect consent to the Servicer appointment of a conservator or the Performance Guarantor; or
(e) the Servicer shall fail to deliver the reports described receiver or liquidator in Section 8.1 any insolvency, readjustment of this Indenture debt, marshaling of assets and such failure shall continue for five Business Days. THEN, so long as such Servicer Default shall be continuing, the Control Party by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency (a “Termination Notice”), may terminate all liabilities or similar proceedings of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans Master Servicer or of or relating to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraph.substantially
Appears in 1 contract
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any required payment, transfer or deposit or to give instructions or notice to the Indenture Trustee to make or cause to be made such payment, transfer or deposit on or before the date such payment, transfer or deposit or such instruction or notice is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture Agreement, the Indenture, the 2022-1A SUBI Supplement, or the 2022-1A SUBI Servicing Agreement, in an aggregate amount exceeding $50,000, and such which failure remains continues unremedied for two a period of five (5) Business Days; providedDays after the earlier of (i) the date on which notice of such failure, howeverrequiring the same to be remedied, that if shall have been given by registered or certified mail to the Servicer is unable by the Issuer or the Indenture Trustee, or to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysIssuer and the Indenture Trustee by the Required Noteholders and (ii) the actual knowledge of the Servicer thereof;
(b) any failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture Agreement, the Indenture, the 2022-1A SUBI Supplement or the 2022-1A SUBI Servicing Agreement or in any other Transaction Document to which certificate delivered by the Servicer is pursuant to this Agreement, the 2022-1A SUBI Supplement, the 2022-1A SUBI Servicing Agreement or the Indenture, which failure has a party material adverse effect on the interests of the Noteholders (as determined by the Threshold Noteholders) and such failure which continues unremedied for a period of 30 forty-five (45) days after the earlier of (i) the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given by registered or certified mail to the Servicer by the Issuer or the Indenture Trustee, or to the Servicer Servicer, the Issuer and the Indenture Trustee by the Insurer or Threshold Noteholders and (ii) the Holders of 25% or more actual knowledge of the Aggregate Principal Amount of the NotesServicer thereof;
(c) any representation and representation, warranty or certification made by the Servicer in this Indenture Agreement, the Indenture, the 2022-1A SUBI Supplement or the 2022-1A SUBI Servicing Agreement or in any certificate delivered by the Servicer pursuant to this Agreement, the Indenture, the 2022-1A SUBI Supplement or the 2022-1A SUBI Servicing Agreement shall prove to have been incorrect in any material respect when made or deemed made and such failure has a material and adverse impact effect on the Trustee’s interest in Noteholders (as determined by the Pledged Loans Threshold Noteholders) and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days which continues unremedied for a period of forty-five (45) days after the earlier of (i) the date on which a notice specifying such incorrect representation or warranty and requiring the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach same to be remedied, shall have been given by registered or certified mail to the Servicer by the Trustee Issuer or the Indenture Trustee, or to the Servicer Servicer, the Issuer, and the Indenture Trustee by the Insurer or Threshold Noteholders and (ii) the Holders of 25% or more actual knowledge of the Aggregate Principal Amount of the Notes;Servicer thereof; or
(d) an Insolvency Event shall occur with respect to the Servicer; then, in the event of any Servicer or the Performance Guarantor; or
(e) the Servicer shall fail to deliver the reports described in Section 8.1 of this Indenture and such failure shall continue for five Business Days. THENDefault, so long as such a Servicer Default shall be is continuing, the Control Party Indenture Trustee may (and upon the written direction of the Required Noteholders shall), by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, North Carolina Trust and the Insurer and each Rating Agency Back-up Servicer (a “Termination Notice”), may ) (i) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement, the 2022-1A SUBI Supplement, the 2022-1A SUBI Servicing Agreement and the Indenture and (ii) direct the applicable party to terminate any power of attorney granted to the Servicer or any Subservicer and direct such termination being herein called party to execute a “Service Transfer”)new power of attorney to the Indenture Trustee or its designee. The existence of a Servicer Default may be waived with the consent of the Required Noteholders. Notwithstanding the foregoing, a delay in or failure of performance referred to under paragraph (a) above for an additional period of five (5) Business Days after the applicable grace period or referred to under paragraph (b) or (c) above for a period of forty-five (45) days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by a Force Majeure Event. If, following the expiration of such incremental forty-five (45) day grace period in the case of a delay or failure of performance described in paragraph (b) or (c) above, the applicable delay or failure of performance remains outstanding but the Servicer continues to work diligently to remedy such delay or failure of performance, then the grace period shall be extended for a further thirty (30) days upon notice from the Servicer to the Indenture Trustee. The preceding sentences will not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Issuer and the Depositor with an Officer’s Certificate giving prompt notice of such failure or delay, together with a description of its efforts so to perform its obligations. After receipt by the Servicer of a Termination Notice, and effective on the Trustee of such Termination Notice and subject to the terms of Section 12.2(a)Servicing Transfer Date, the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in the Successor Servicer (a “Servicing Transfer”) appointed by the Indenture Trustee (at the written direction of the Required Noteholders if the Successor Servicer is not the Back-up Servicer or such Successor Servicer, as the case may be, without further action on the part of any Person, Indenture Trustee) pursuant to Section 8.02; and, without limitation, the Indenture Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperatecooperate promptly) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsServicing Transfer. The Servicer agrees to reasonably cooperate and to cause each Subservicer to reasonably cooperate (and each Subservicer agrees to cooperate) with the Indenture Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder and (ii) transferring all duties and obligations of the Servicer hereunder to such Successor Servicer, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service and administer the Pledged Loans provided for under this IndentureAgreement, including without limitation all authority over any all Collections which shall on the date of transfer be held by the Servicer for deposit deposit, or which have been deposited by the Servicer, in a Lockbox the Collection Account or other applicable Note Account, or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer to the Successor Servicer all its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer Loans, together with all other records, correspondence and documents necessary for the continued servicing and administration of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Notwithstanding the foregoing, the Servicer shall allow be allowed to retain a copy of all records, correspondence and documents provided to the Successor Servicer access to in compliance with the Servicer’s officers and employeesrecordkeeping policies or Requirements of Law. The predecessor Servicer shall be responsible for all expenses incurred in transferring the servicing duties to the Successor Servicer. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidentialconfidential or give the Successor Servicer access to software or other intellectual property, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphinterests.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Regional Management Corp.)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuingoccur:
(ai) any failure by the Servicer Servicer: (x) to make deposit to the Collection Account (A) any payment, transfer or deposit on or before the date such payment, transfer or deposit is amount required to be made or given deposited therein by the Servicer under the terms of this Indenture and (other than any such failure remains unremedied for two Business Days; provided, however, that if resulting from an administrative or technical error of the Servicer is unable to make a paymentin the amount so deposited); or (B) within one (1) Business Day after the Servicer becomes aware that, transfer or deposit when due and such failure is as a result of circumstances beyond an administrative or technical error of the Servicer, any amount previously deposited by the Servicer to the Collection Account was less than the amount required to be deposited therein by the Servicer, the amount of such shortfall; or (y) to deliver to the Trust Collateral Agent the Servicer’s control, Certificate on the grace period shall be extended to five Business Daysrelated Determination Date;
(bii) failure on the part of the Servicer duly to observe or to perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture any Basic Document, or any other Transaction Document to which representation or warranty of the Servicer is a party and such failure continues made in this Agreement, any other Basic Document or in any certificate or other writing delivered pursuant to any Basic Document proving to have been incorrect in any material respect as of the time when the same shall have been made, which default, if capable of cure, shall continue unremedied for a period of 30 thirty (30) days after (or a longer period, not in excess of sixty (60) days, as may be reasonably necessary to remedy such default, if the earlier default is capable of the date on which remedy within sixty (60) days or less and the Servicer delivers an Officer’s Certificate to the Indenture Trustee to the effect that it has actual knowledge of commenced, or will promptly commence and diligently pursue, all reasonable efforts to remedy the failure and the date on which default) after (x) there shall have been given written notice of such failure, requiring the same to be remedied, shall have been given (1) to the Servicer, by the Trust Collateral Agent, or (2) to the Servicer by the TrusteeTrust Collateral Agent at the direction of the Majority Noteholders; or (y) discovery of such failure by an officer of the Servicer; or
(iii) the entry of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, receiver, or to liquidator for the Servicer or any of its subsidiaries in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings, or for the winding up or liquidation of its respective affairs, and the Trustee by the Insurer continuance of any such decree or order unstayed and in effect for a period of sixty (60) consecutive days or the Holders entry of 25% any decree or more order for relief in respect of the Aggregate Principal Amount Servicer or any of the Notes;its subsidiaries under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, or similar law, whether now or hereafter in effect, which decree or order for relief continues unstayed and in effect for a period of sixty (60) consecutive days; or
(civ) any representation and warranty made the consent by the Servicer in this Indenture shall prove or any of its subsidiaries to have been incorrect the appointment of a conservator or receiver or liquidator in any material respect when made insolvency, readjustment of debt, marshalling of assets and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation liabilities, or warranty within 30 Business Days after the earlier similar proceedings of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(d) an Insolvency Event shall occur with respect relating to the Servicer or any of its subsidiaries or relating to substantially all of its property; or the Performance Guarantoradmission by the Servicer or any of its subsidiaries in writing of its inability to pay its debts generally as they become due, the filing by the Servicer or any of its subsidiaries of a petition to take advantage of any applicable insolvency or reorganization statute, the making by the Servicer or any of its subsidiaries of an assignment for the benefit of its creditors, or the voluntary suspension by the Servicer or any of its subsidiaries of payment of its obligations;
(v) [Reserved]; or
(evi) the Originator or Servicer, if Credit Acceptance is the Servicer, fails to pay when due (or no later than the next Distribution Date after the Servicer shall fail to deliver the reports described becomes aware that such payment was not made) Purchase Amounts in Section 8.1 excess of this Indenture $100,000; then, and such failure shall continue for five Business Days. THEN, so long as such Servicer Default shall be continuingin each and every case, the Control Party Trust Collateral Agent, if so directed by the Majority Noteholders by notice then given in writing to the Servicer, the Swap CounterpartyBackup Servicer and the Trust Collateral Agent, the Issuer, the Trustee, the Insurer and each Rating Agency (a “Termination Notice”), may shall terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraph.this
Appears in 1 contract
Samples: Sale and Servicing Agreement (Credit Acceptance Corp)
Servicer Defaults. If any one of the following events (each, a “"Servicer Default”") shall occur and be continuingoccur:
(ai) any failure by the Servicer Servicer: (x) to make deposit to the Collection Account (A) any payment, transfer or deposit on or before the date such payment, transfer or deposit is amount required to be made or given deposited therein by the Servicer under the terms of this Indenture and (other than any such failure remains unremedied for two Business Days; provided, however, that if resulting from an administrative or technical error of the Servicer is unable to make a paymentin the amount so deposited); or (B) within one (1) Business Day after the Servicer becomes aware that, transfer or deposit when due and such failure is as a result of circumstances beyond an administrative or technical error of the Servicer’s control, any amount previously deposited by the Servicer to the Collection Account was less than the amount required to be deposited therein by the Servicer, the grace period shall be extended amount of such shortfall; or (y) to five Business Daysdeliver to the Trust Collateral Agent or the Insurers the Servicer's Certificate on the related Determination Date;
(bii) failure on the part of the Servicer duly to observe or to perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture any Basic Document, or any other Transaction Document to which representation or warranty of the Servicer is a party and such failure continues made in this Agreement, any other Basic Document or in any certificate or other writing delivered pursuant to any Basic Document proving to have been incorrect in any material respect as of the time when the same shall have been made, which default, if capable of cure, shall continue unremedied for a period of 30 days after (or a longer period, not in excess of 60 days, as may be reasonably necessary to remedy such default, if the earlier default is capable of the date on which remedy within 60 days or less and the Servicer delivers an Officer's Certificate to the Indenture Trustee to the effect that it has actual knowledge of commenced, or will promptly commence and diligently pursue, all reasonable efforts to remedy the failure and the date on which default) after (x) there shall have been given written notice of such failure, requiring the same to be remedied, shall have been given (1) to the Servicer, by the Trust Collateral Agent, or (2) to the Servicer by the Trusteeeither Insurer, or to the Servicer if both a Class A Insurer Default and the Trustee a Backup Insurer Default have has occurred and are continuing, by the Insurer or Trust Collateral Agent at the Holders direction of Class A Noteholders representing at least 25% or more the Outstanding Class A Note Balance; or (y) discovery of such failure by an officer of the Aggregate Principal Amount Servicer; or
(iii) the entry of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, receiver, or liquidator for the Servicer or any of its subsidiaries in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings, or for the winding up or liquidation of its respective affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the entry of any decree or order for relief in respect of the Notes;Servicer or any of its subsidiaries under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, or similar law, whether now or hereafter in effect, which decree or order for relief continues unstayed and in effect for a period of 60 consecutive days; or
(civ) any representation and warranty made the consent by the Servicer in this Indenture shall prove or any of its subsidiaries to have been incorrect the appointment of a conservator or receiver or liquidator in any material respect when made insolvency, readjustment of debt, marshalling of assets and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation liabilities, or warranty within 30 Business Days after the earlier similar proceedings of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(d) an Insolvency Event shall occur with respect relating to the Servicer or any of its subsidiaries or relating to substantially all of its property; or the Performance Guarantoradmission by the Servicer or any of its subsidiaries in writing of its inability to pay its debts generally as they become due, the filing by the Servicer or any of its subsidiaries of a petition to take advantage of any applicable insolvency or reorganization statute, the making by the Servicer or any of its subsidiaries of an assignment for the benefit of its creditors, or the voluntarily suspension by the Servicer or any of its subsidiaries of payment of its obligations;
(v) the Servicer breaches any Financial Covenant; or
(evi) the Servicer shall fail Originator or Servicer, if Credit Acceptance is the Servicer, fails to deliver pay when due Purchase Amounts in excess of $100,000; then, and in each and every case, the reports described in Section 8.1 of this Indenture Trust Collateral Agent, if so requested by the Controlling Party, or if both a Class A Insurer Default and such failure shall continue for five Business Days. THEN, so long as such Servicer Backup Insurer Default shall be have occurred and are continuing, the Control Party Majority Noteholders by notice then given in writing to the Servicer, the Swap CounterpartyBackup Servicer, the Issuer, the Trustee, the Insurer and each Rating Agency Trust Collateral Agent may: (a “Termination Notice”), may A) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement or (B) if Credit Acceptance is the Servicer, reduce its servicing term then in effect to a term of three (3) months. Upon sending or receiving any such notice, the Trust Collateral Agent shall promptly send a copy thereof to the Indenture (such termination being herein called a “Service Transfer”)Trustee, the Owner Trustee, the Rating Agencies, the Class A Insurer, the Backup Insurer and to each Class A Noteholder. After Within 30 days after the receipt by the Backup Servicer and the Trustee of such Termination Notice written notice (if such notices relates to terminating the Servicer) and subject to the terms of Section 12.2(a8.02(a)), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall Agreement, whether with respect to the Class A Notes or the Dealer Loans or Contracts or otherwise, shall, without further action, pass to and be vested in the Trustee Backup Servicer or such Successor Servicer, successor Servicer as the case may be, without further action on the part of any Person, be appointed under Section 8.02; and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) Backup Servicer is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicerpredecessor servicer, as attorney-in-fact or otherwise, any and all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of servicing rightsthe Dealer Loans and the Contracts and related documents, or otherwise. The predecessor Servicer agrees to shall cooperate with the Trustee successor Servicer and such Successor the Backup Servicer in effecting the termination of the responsibilities and rights of the predecessor Servicer to conduct servicing hereunderunder this Agreement, including without limitation the transfer to such Successor the Backup Servicer or the successor Servicer for administration by it of all authority of cash amounts that shall at the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer time be held by the Servicer predecessor servicer for deposit in a Lockbox Account deposit, or which shall thereafter be received by the Servicer with respect to the Pledged Loansa Dealer Loan or related Contract, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing related accounts and records maintained by the Successor Servicer’s personnel access . All Transition Expenses shall be paid by the predecessor servicer upon presentation of reasonable documentation of such costs and expenses. If such Transition Expenses are not paid to the successor Servicer by the predecessor Servicer’s premises for , such Transition Expenses shall be paid under Section 5.08(a)(i) hereof. In addition, the purpose of collecting payments on Controlling Party shall have the Pledged Loans made at option to pay the Transition Expenses. If the Controlling Party elects to pay any such premises. The Servicer Transition Expenses, the amount paid by the Controlling Party shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing constitute part of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access Reimbursement Obligations owed to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphit.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Credit Acceptance Corporation)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuingoccur:
(ai) any failure by the Servicer Servicer: (x) to make deposit to the Collection Account (A) any payment, transfer or deposit on or before the date such payment, transfer or deposit is amount required to be made or given deposited therein by the Servicer under the terms of this Indenture and (other than any such failure remains unremedied for two Business Days; provided, however, that if resulting from an administrative or technical error of the Servicer is unable to make a paymentin the amount so deposited); or (B) within one (1) Business Day after the Servicer becomes aware that, transfer or deposit when due and such failure is as a result of circumstances beyond an administrative or technical error of the Servicer, any amount previously deposited by the Servicer to the Collection Account was less than the amount required to be deposited therein by the Servicer, the amount of such shortfall; or (y) to deliver to the Trust Collateral Agent the Servicer’s control, Certificate on the grace period shall be extended to five Business Daysrelated Determination Date;
(bii) failure on the part of the Servicer duly to observe or to perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture any Basic Document, or any other Transaction Document to which representation or warranty of the Servicer is a party and such failure continues made in this Agreement, any other Basic Document or in any certificate or other writing delivered pursuant to any Basic Document proving to have been incorrect in any material respect as of the time when the same shall have been made, which default, if capable of cure, shall continue unremedied for a period of 30 thirty (30) days after (or a longer period, not in excess of sixty (60) days, as may be reasonably necessary to remedy such default, if the earlier default is capable of the date on which remedy within sixty (60) days or less and the Servicer delivers an Officer’s Certificate to the Indenture Trustee to the effect that it has actual knowledge of commenced, or will promptly commence and diligently pursue, all reasonable efforts to remedy the failure and the date on which default) after (x) there shall have been given written notice of such failure, requiring the same to be remedied, shall have been given (1) to the Servicer, by the Trust Collateral Agent, or (2) to the Servicer by the TrusteeTrust Collateral Agent at the direction of the Majority Noteholders; or (y) discovery of such failure by an officer of the Servicer; or
(iii) the entry of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, receiver, or to liquidator for the Servicer or any of its subsidiaries in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings, or for the winding up or liquidation of its respective affairs, and the Trustee by the Insurer continuance of any such decree or order unstayed and in effect for a period of sixty (60) consecutive days or the Holders entry of 25% any decree or more order for relief in respect of the Aggregate Principal Amount Servicer or any of the Notes;its subsidiaries under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, or similar law, whether now or hereafter in effect, which decree or order for relief continues unstayed and in effect for a period of sixty (60) consecutive days; or
(civ) any representation and warranty made the consent by the Servicer in this Indenture shall prove or any of its subsidiaries to have been incorrect the appointment of a conservator or receiver or liquidator in any material respect when made insolvency, readjustment of debt, marshalling of assets and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation liabilities, or warranty within 30 Business Days after the earlier similar proceedings of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(d) an Insolvency Event shall occur with respect relating to the Servicer or any of its subsidiaries or relating to substantially all of its property; or the Performance Guarantoradmission by the Servicer or any of its subsidiaries in writing of its inability to pay its debts generally as they become due, the filing by the Servicer or any of its subsidiaries of a petition to take advantage of any applicable insolvency or reorganization statute, the making by the Servicer or any of its subsidiaries of an assignment for the benefit of its creditors, or the voluntarily suspension by the Servicer or any of its subsidiaries of payment of its obligations;
(v) the Servicer breaches any Financial Covenants; or
(evi) the Servicer shall fail Originator or Servicer, if Credit Acceptance is the Servicer, fails to deliver the reports described pay when due Purchase Amounts in Section 8.1 excess of this Indenture $100,000; then, and such failure shall continue for five Business Days. THEN, so long as such Servicer Default shall be continuingin each and every case, the Control Party Trust Collateral Agent, if so requested by the Majority Noteholders by notice then given in writing to the Servicer, the Swap Counterparty, Backup Servicer and the Issuer, the Trustee, the Insurer and each Rating Agency (a “Termination Notice”)Trust Collateral Agent, may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. Upon sending or receiving any such notice, the Trust Collateral Agent shall promptly send a copy thereof to the Indenture Trustee, the Owner Trustee, the Servicer (who shall promptly provide such termination being herein called a “Service Transfer”)notice to the Rating Agencies) and to each Noteholder. After Within thirty (30) days after the receipt by the Backup Servicer and the Trustee of such Termination Notice written notice (if such notice relates to terminating the Servicer) and subject to the terms of Section 12.2(a8.02(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall Agreement, whether with respect to the Notes or the Loans or Contracts or otherwise, shall, without further action, pass to and be vested in the Trustee Backup Servicer or such Successor Servicer, successor Servicer as may be appointed under Section 8.02; and the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) Backup Servicer is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicerpredecessor servicer, as attorney-in-fact or otherwise, any and all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and or accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer notice of servicing rightstermination, whether to complete the conveyance and endorsement of the Loans and the Contracts and related documents, or otherwise. The predecessor Servicer agrees to shall cooperate with the Trustee successor Servicer and such Successor the Backup Servicer in effecting the termination of the responsibilities and rights of the predecessor Servicer to conduct servicing hereunderunder this Agreement, including without limitation the transfer to such Successor the Backup Servicer or the successor Servicer for administration by it of all authority of cash amounts that shall at the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer time be held by the Servicer predecessor servicer for deposit in a Lockbox Account deposit, or which shall thereafter be received by the Servicer with respect to the Pledged Loansa Loan or related Contract, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing related accounts and records maintained by the Successor Servicer’s personnel access . All Transition Expenses shall be paid by the predecessor servicer upon presentation of reasonable documentation of such costs and expenses. If such Transition Expenses are not paid to the successor Servicer by the predecessor Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at , such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer Transition Expenses shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphpaid under Section 5.08(a)(i) hereof.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Credit Acceptance Corp)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (including without limitation with respect to Collections) as required by this Agreement on or before the date such payment, transfer or deposit is required to be made or given made;
(b) any failure by the Servicer to give instructions or notice to the Administrative Agent as required by this Agreement, or to deliver any required Monthly Report or other Required Reports hereunder on or before the date occurring two Business Days after the date such instruction, notice or report is required to be made or given, as the case may be, under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysAgreement;
(bc) any failure on the part of the Servicer (A) duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any the other Transaction Document Documents to which the Servicer is a party and such failure the same continues unremedied for a period of 30 10 days after the earlier to occur of the date on which the Servicer has actual knowledge of the failure and (i) the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the TrusteeAdministrative Agent and (ii) the date on which the Servicer becomes aware thereof, or (B) duly to the Servicer and the Trustee by the Insurer observe or the Holders of 25% perform its obligations under Section 5.4(o) or more of the Aggregate Principal Amount of the NotesSection 6.4(j);
(cd) any representation and representation, warranty or certification made by the Servicer in this Indenture any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect in any material respect when made made, and has a material and which (if capable of being cured without any adverse impact on the Trustee’s interest in Purchasers or the Pledged Loans and other Pledged Assets and collectibility of the Servicer is not in compliance with such representation or warranty within 30 Business Days Assets) continues to be unremedied for a period of 10 days after the earlier to occur of the date on which the Servicer has actual knowledge of such breach and (i) the date on which written notice of such breach incorrectness requiring that such breach the same to be remedied, remedied shall have been given to the Servicer by the Trustee or to Administrative Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(de) an Insolvency Event shall occur with respect to the Servicer;
(f) any material delegation of the Servicer’s duties that is not permitted by Section 6.1;
(g) any financial or other information reasonably requested by the Administrative Agent or any Purchaser is not provided as requested within a reasonable amount of time following such request;
(h) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of $10,000,000, individually or in the aggregate, and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than 60 consecutive days without a stay of execution;
(i) the failure of the Servicer to make any payment due with respect to any recourse debt or other obligations, which debt or other obligations are in excess of $10,000,000, individually or in the aggregate, or the Performance Guarantoroccurrence of any event or condition that would at such time permit acceleration of such recourse debt or other obligations;
(j) CapitalSource Inc.’s Consolidated Tangible Net Worth is less than the TNW Test Level;
(k) a payment default or other default, termination event or other similar event has occurred and is continuing (beyond any applicable grace period) under any Other CapitalSource Facilities or under or with respect to any repurchase agreement, securitization or any other facility providing indebtedness for borrowed money, in each case, in an amount greater than $10,000,000 to or for the benefit of CapitalSource Inc. or any of its Subsidiaries (except for those securitizations or other facilities listed on Schedule IX, as the same may be updated from time to time as mutually agreed by the Seller and the Administrative Agent), and at such time such event permits the lender or holder of rights thereunder to terminate commitments, accelerate the obligations owing thereunder or otherwise exercise remedies thereunder; provided that a Servicer Default arising as a result of a default, termination event, margin call or other similar event with respect to a repurchase agreement or series of repurchase agreements shall be deemed to be cured with the effect of being considered not to have occurred, to the extent that either (i) the surrender of the related collateral in whole to (or liquidation of the related collateral in whole by) the repo counterparty under such repurchase agreement (by itself or together with any payments made, or additional collateral provided to, the repo counterparty) constitutes satisfaction in full of the obligations of CapitalSource Inc. and its Subsidiaries thereunder, or (ii) the deficiency amount under such repurchase agreement or series of repurchase agreements after application of collateral proceeds with respect to the sale or liquidation of the related collateral is less than $10,000,000;
(l) the Servicer fails in any material respect to comply with the Credit and Collection Policy regarding the servicing of the Collateral; or
(em) the Servicer shall fail consents or agrees to, or otherwise permits to deliver occur, any amendment, modification, change, supplement or rescission of or to the reports described Credit and Collection Policy (after the adoption of same) in Section 8.1 whole or in part that could be reasonably expected to have a Material Adverse Effect upon the Collateral, the Administrative Agent or the Secured Parties, without the prior written consent of this Indenture and such failure shall continue for five Business Daysthe Administrative Agent. THENthen notwithstanding anything herein to the contrary, so long as any such Servicer Default shall be continuingnot have been remedied within any applicable cure period prior to the date of the Servicer Termination Notice (defined below), the Control Party Administrative Agent, by written notice then given in writing to the Servicer (with a copy to the Backup Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency ) (a “Servicer Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphAgreement.
Appears in 1 contract
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Master Servicer to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made or given by the Servicer under the terms of this Indenture Agreement or a Series Supplement and such failure remains unremedied for two Business Days; provided, however, that if the Master Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Master Servicer’s control, the grace period shall be extended to five Business Days;
(b) failure on the part of the Master Servicer duly to observe or perform any other covenants or agreements of the Master Servicer set forth in this Indenture Agreement, a Series Supplement or any other Transaction Facility Document to which the Master Servicer is a party and such failure continues unremedied for a period of 30 20 days after the earlier of the date on which the Master Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Trustee, or to the Master Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesany Noteholder;
(c) any representation and warranty made by the Master Servicer in this Indenture Agreement shall prove to have been incorrect in any material respect when made and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Master Servicer is not in compliance with such representation or warranty within 30 ten Business Days after the earlier of the date on which the Master Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Master Servicer by the Trustee or to the Master Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesany Noteholder;
(d) an Insolvency Event shall occur with respect to the Master Servicer or the Performance Guarantor; orParent Corporation;
(e) the Master Servicer shall fail fails to deliver reports to the reports described Trustee in accordance with Section 8.1 6.1 of this Indenture Agreement and such failure shall continue remains unremedied for five Business Days; or
(f) the occurrence of any event which is designated as a Servicer Default under any Series Supplement. THEN, so long as such Master Servicer Default shall be continuing, either the Control Party Trustee, or the Majority Holders of all Notes by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer Master Servicer and each Rating Agency (and to the Trustee if given by the Majority Holders) (a “Termination Notice”), may terminate all of the rights and obligations of the Master Servicer as Master Servicer under this Indenture Agreement (such termination being herein called a “Service Transfer”). After receipt by the Master Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a10.2(a), the Trustee shall automatically assume the responsibilities of the Master Servicer hereunder until the date that a Successor Master Servicer shall have been appointed pursuant to Section 12.2 10.2 and all authority and power of the Master Servicer under this Indenture Agreement shall pass to and be vested in the Trustee or such Successor Master Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) Majority Holders is hereby authorized and empowered (upon the failure of the Master Servicer to cooperate) to execute and deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Master Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Master Servicer agrees to cooperate with the Trustee and such Successor Master Servicer in effecting the termination of the responsibilities and rights of the Master Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Master Servicer of all authority of the Master Servicer to service the Pledged Loans provided for under this IndentureAgreement, including without limitation all authority over any Collections which shall on the date of transfer be held by the Master Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Master Servicer with respect to the Pledged Loans, and in assisting the Successor Master Servicer in enforcing all rights under this Indenture Agreement including, without limitation, allowing the Successor Master Servicer’s personnel access to the Master Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Master Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Master Servicer in such electronic form as the Successor Master Servicer may reasonably request and shall promptly transfer to the Successor Master Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Master Servicer shall reasonably request. The Master Servicer shall allow the Successor Master Servicer access to the Master Servicer’s officers and employees. To the extent that compliance with this Section 12.1 10.1 shall require the Master Servicer to disclose to the Successor Master Servicer information of any kind which the Master Servicer reasonably deems to be confidential, the Successor Master Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Master Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Master Servicer. The Master Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Master Servicer with the provisions of this paragraph.
Appears in 1 contract
Samples: Master Indenture and Servicing Agreement (Wyndham Worldwide Corp)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made or given by the Servicer under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business Days;
(b) failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture or any other Transaction Document to which the Servicer is a party and such failure continues unremedied for a period of 30 days after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(c) any representation and warranty made by the Servicer in this Indenture shall prove to have been incorrect in any material respect when made and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days after the earlier of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(d) an Insolvency Event shall occur with respect to the Servicer or the Performance Guarantor; or;
(e) the Servicer shall fail to deliver the reports described in Section 8.1 of this Indenture and such failure shall continue for five Business Days;
(f) on any Determination Date, the Consolidated Leverage Ratio for the most recent Rolling Period is greater than 3.5 to 1.0 and such Consolidated Leverage Ratio continues to be greater than 3.5 to 1.0 for the following fiscal quarter; or
(g) on any Determination Date, the Consolidated Interest Coverage Ratio for the most recent Rolling Period is less than 3.0 to 1.0 and such Consolidated Interest Coverage Ratio continues to be less than 3.0 to 1.0 for the following fiscal quarter. THEN, so long as such Servicer Default shall be continuing, the Control Party Consent Parties by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer Trustee and each Rating Agency (a “Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party Consent Parties (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox the Control Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraph.
Appears in 1 contract
Samples: Indenture and Servicing Agreement (Wyndham Worldwide Corp)
Servicer Defaults. If any one of the following events (each, a “----------------- "Servicer Default”") shall occur and be continuingcontinuing after the FCMT Termination ---------------- Date:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Indenture Trustee pursuant to the Indenture or to make any required drawing, withdrawal, or payment under any Enhancement required to be made by the Servicer on or before the date occurring five Business Days after the date such payment, transfer transfer, deposit, withdrawal or deposit drawing, or such instruction or notice is required to be made or given by the Servicer Servicer, as the case may be, under the terms of this Indenture and such failure remains unremedied for two Business DaysAgreement or the Indenture; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business Days;or
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture or any other Transaction Document to Agreement which has a material adverse effect on the Servicer is a party and such failure Noteholders, which continues unremedied for a period of 30 60 days after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Indenture Trustee, or to the Servicer and the Indenture Trustee by the Insurer Noteholders holding not less than 10% of the outstanding principal amount of any Series adversely affected thereby and continues to materially adversely affect such Noteholders for such period; or the Holders Servicer's delegation of 25% its duties under this Agreement except as permitted by Section 5.7; or more of the Aggregate Principal Amount of the Notes;-----------
(c) any representation and representation, warranty or certification made by the Servicer in this Indenture Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Noteholders and which continues to be incorrect in any material respect when made and has for a material and adverse impact on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days period of 60 days after the earlier of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach failure requiring that such breach the same to be remedied, remedied shall have been given to the Servicer by the Trustee Indenture Trustee, or to the Servicer and the Indenture Trustee by the Insurer or the Holders of 25Noteholders holding not less than 10% or more of the Aggregate Principal Amount outstanding principal amount of any Series adversely affected thereby and continues to materially adversely affect such Noteholders for such period, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of the Notes;
(d) an Insolvency Event shall occur with respect to the Servicer or the Performance Guarantor; or
(e) Servicer, if the Servicer shall fail to deliver proceed promptly to cure the reports described in Section 8.1 same and prosecute the curing of this Indenture and such failure with diligence and continuity; or
(d) the Servicer shall continue (i) become insolvent, (ii) fail to pay its debts generally as they become due, (iii) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any Debtor Relief Law, or (iv) become a party to (or be made the subject of) any proceeding provided for five Business Days. THENby any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 60 days after its filing; then, so long as such Servicer Default shall be continuingnot have been remedied, either the Control Party Indenture Trustee, or the Noteholders holding more than 50% of the aggregate outstanding principal amount of the Notes, by notice then given in writing to the Servicer, Servicer (and to the Swap Counterparty, Indenture Trustee if given by the Issuer, the Trustee, the Insurer and each Rating Agency Noteholders) (a “"Termination Notice”"), may terminate all of the rights and obligations of the ------------------ Servicer as Servicer under this Indenture Agreement and in and to the Receivables and the proceeds thereof (such termination being herein called a “Service Transfer”other than its rights and interest, if any, as holder of the Seller Interest). After receipt by the Servicer and the Trustee of such Termination Notice Notice, and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until on the date that a Successor Servicer shall have been appointed by the Indenture Trustee pursuant to Section 12.2 and 7.2, all ----------- authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in the Trustee or such a Successor Servicer, as ; and the case may be, without further action on the part of any Person, and, without limitation, the Indenture Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans Receivables provided for under this IndentureAgreement, including without limitation all authority over any all Collections which shall on the date of transfer be held by the Servicer for deposit deposit, or which have been deposited by the Servicer, in a Lockbox any Collection Account or Series Account, or which shall thereafter be received by the Servicer with respect to the Pledged LoansReceivables, and in assisting the Successor Servicer and in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premisesInsurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans Receivables in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 7.1 shall require the Servicer to ----------- disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and as shall be satisfactory obligations, if any, in form and substance respect of any Enhancement to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraph.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (First Consumers Master Trust)
Servicer Defaults. If any one of the following events (each, a “"Servicer Default”") shall occur and be continuingcontinuing with respect to the Servicer:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee to make such payment, transfer or deposit or to give notice to the Indenture Trustee as to any action to be taken under any Enhancement Agreement on or before the date occurring five days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysAgreement;
(b) failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture or Agreement which has a material adverse effect on the Noteholders of any other Transaction Document to Series, which the Servicer is a party and such failure continues unremedied for a period of 30 60 days after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee, or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(c) the Servicer shall delegate its duties under this Agreement, except as permitted by Sections 3.01 and 5.07;
(d) any representation and representation, warranty or certification made by the Servicer in this Indenture Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect in any material respect when made and made, which has a material and adverse impact effect on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days after the earlier rights of the date on Noteholders of any Series and which the Servicer has actual knowledge material adverse effect continues for a period of such breach and 60 days after the date on which written notice of such breach thereof, requiring that such breach the same to be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the NotesIndenture Trustee;
(d) an Insolvency Event shall occur with respect to the Servicer or the Performance Guarantor; or
(e) the Servicer shall fail consent to deliver the reports described appointment of a conservator or receiver or liquidator or other similar official in Section 8.1 any bankruptcy, insolvency, readjustment of this Indenture debt, marshalling of assets and liabilities or similar proceedings of or relating to 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 or receiver or liquidator or other similar official in any insolvency, 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 the Servicer and such failure decree or order shall continue have 41 remained in force undischarged or unstayed; or the 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 bankruptcy, insolvency or reorganization statute, make any assignment for five Business Days. THENthe benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as such the Servicer Default shall be continuingnot have been remedied, the Control Party Indenture Trustee, by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency Servicer (a “"Termination Notice”"), may terminate all but not less than all of the rights and obligations (other than its obligations that have accrued up to the time of such termination) of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”)Agreement and in and to the Receivables and the proceeds thereof. After receipt by the Servicer of a Termination Notice, and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until on the date that a Successor Servicer shall have been appointed by the Indenture Trustee pursuant to Section 12.2 and 6.02, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in the Trustee or such a Successor Servicer, as the case may be, without further action on the part of any Person, Servicer (a "Service Transfer") and, without limitation, the Indenture Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans Receivables provided for under this IndentureAgreement, including without limitation all authority over any all Collections which shall on the date of transfer be held by the Servicer for deposit deposit, or which have been deposited by the Servicer, in a Lockbox Account the Collection Account, or which shall thereafter be received by the Servicer with respect to the Pledged LoansReceivables, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans Receivables in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 5.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest interest;
(f) failure on the part of the Servicer to engage a back-up Servicer with 180 days of the Series 200__-__ Closing Date. Notwithstanding the foregoing, a delay in or failure of performance under Section 6.01(a) for a period of five Business Days, under Section 6.01(b) for a period of 60 days or under Section 6.01(d) for a period of 60 days, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and as such delay or failure was caused by an act of God or the public enemy, acts of declares or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall be satisfactory not relieve the Servicer from using its best efforts to perform its respective obligations in form a timely manner in accordance with the terms of this Agreement and substance the Servicer shall provide the Indenture Trustee, any Agents, any Enhancement Providers, the Transferor and Indenture with an Officers' Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to the Successor Servicerperform its obligations. The Servicer hereby consents to shall immediately notify the entry against it Indenture Trustee in writing of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphDefault.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (CNH Wholesale Receivables Inc)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (including without limitation with respect to Collections) as required by this Agreement which continues unremedied for a period of one Business Day;
(b) any failure by the Servicer to give instructions or notice to the Administrative Agent and each Purchaser Agent as required by this Agreement, or to deliver any required Monthly Report or other Required Reports hereunder on or before the date occurring two Business Days after the date such paymentinstruction, transfer notice or deposit report is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysAgreement;
(bc) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any the other Transaction Document Documents to which the Servicer is a party and such failure the same continues unremedied for a period of 30 days after the earlier to occur of the date on which the Servicer has actual knowledge of the failure and (i) the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Trustee, or to Administrative Agent and each Purchaser Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(cd) any representation and representation, warranty or certification made by the Servicer in this Indenture any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect in any material respect when made and made, which has a material and adverse impact Material Adverse Effect on the Trustee’s interest in Administrative Agent, any Purchaser Agent or the Pledged Loans Secured Parties and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within which continues to be unremedied for a period of 30 Business Days days after the earlier to occur of the date on which the Servicer has actual knowledge of such breach and (i) the date on which written notice of such breach incorrectness requiring that such breach the same to be remedied, remedied shall have been given to the Servicer by the Trustee Administrative Agent or to any Purchaser Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(de) an Insolvency Event shall occur with respect to the Servicer;
(f) any material delegation of the Servicer’s duties that is not permitted by Section 6.1;
(g) any financial or other information reasonably requested by the Administrative Agent, any Purchaser Agent or any Purchaser is not provided as requested within a reasonable amount of time following such request;
(h) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of $10,000,000, individually or in the aggregate, and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than 60 consecutive days without a stay of execution;
(i) the failure of the Servicer to make any payment due with respect to any recourse debt or other obligations, which debt or other obligations are in excess of $10,000,000, individually or in the aggregate, or the Performance Guarantoroccurrence of any event or condition that would permit acceleration of such recourse debt or other obligations whether or not waived;
(j) CapitalSource Inc.’s Consolidated Tangible Net Worth is less than (i) $1,015,000,000 plus (ii) 70% of the cumulative Net Proceeds of Capital Stock/Conversion of Debt received at any time after December 31, 2005;
(k) [Reserved];
(l) the Servicer fails in any material respect to comply with the Credit and Collection Policy regarding the servicing of the Collateral; or
(em) the Servicer shall fail consents or agrees to, or otherwise permits to deliver occur, any amendment, modification, change, supplement or rescission of or to the reports described Credit and Collection Policy (after the adoption of same) in Section 8.1 whole or in part that could be reasonably expected to have a Material Adverse Effect upon the Collateral, the Administrative Agent, any Purchaser Agent or the Secured Parties, without the prior written consent of this Indenture the Administrative Agent and such failure shall continue for five Business Dayseach Purchaser Agent. THENthen notwithstanding anything herein to the contrary, so long as any such Servicer Default shall be continuingnot have been remedied within any applicable cure period prior to the date of the Servicer Termination Notice (defined below), the Control Party Administrative Agent, by written notice then given in writing to the Servicer (with a copy to the Backup Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency ) (a “Servicer Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphAgreement.
Appears in 1 contract
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any required payment, transfer or deposit or to give instructions or notice to the Indenture Trustee to make such payment, transfer or deposit on or before the date such payment, transfer or deposit or such instruction or notice is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture Agreement, the Indenture, the 2021-1A SUBI Supplement or the 2021-1A SUBI Servicing Agreement, in an aggregate amount exceeding $50,000, and such which failure remains continues unremedied for two a period of five (5) Business Days; providedDays after the earlier of (i) the date on which notice of such failure, howeverrequiring the same to be remedied, that if shall have been given by registered or certified mail to the Servicer is unable by the Issuer or the Indenture Trustee, or to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysIssuer and the Indenture Trustee by the Required Noteholders and (ii) the actual knowledge of the Servicer thereof;
(b) any failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture Agreement, the Indenture, the 2021-1A SUBI Supplement or the 2021-1A SUBI Servicing Agreement or in any other Transaction Document to which certificate delivered by the Servicer is pursuant to this Agreement, the 2021-1A SUBI Supplement, the 2021-1A SUBI Servicing Agreement or the Indenture, which failure has a party material adverse effect on the interests of the Noteholders (as determined by the Threshold Noteholders) and such failure which continues unremedied for a period of 30 forty-five (45) days after the earlier of (i) the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given by registered or certified mail to the Servicer by the Issuer or the Indenture Trustee, or to the Servicer Servicer, the Issuer and the Indenture Trustee by the Insurer or Threshold Noteholders and (ii) the Holders of 25% or more actual knowledge of the Aggregate Principal Amount of the NotesServicer thereof;
(c) any representation and representation, warranty or certification made by the Servicer in this Indenture Agreement, the Indenture, the 2021-1A SUBI Supplement or the 2021-1A SUBI Servicing Agreement or in any certificate delivered by the Servicer pursuant to this Agreement, the Indenture, the 2021-1A SUBI Supplement or the 2021-1A SUBI Servicing Agreement shall prove to have been incorrect in any material respect when made or deemed made and such failure has a material and adverse impact effect on the Trustee’s interest in Noteholders (as determined by the Pledged Loans Threshold Noteholders) and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days which continues unremedied for a period of forty-five (45) days after the earlier of (i) the date on which a notice specifying such incorrect representation or warranty and requiring the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach same to be remedied, shall have been given by registered or certified mail to the Servicer by the Trustee Issuer or the Indenture Trustee, or to the Servicer Servicer, the Issuer, and the Indenture Trustee by the Insurer or Threshold Noteholders and (ii) the Holders of 25% or more actual knowledge of the Aggregate Principal Amount of the Notes;Servicer thereof; or
(d) an Insolvency Event shall occur with respect to the Servicer; then, in the event of any Servicer or the Performance Guarantor; or
(e) the Servicer shall fail to deliver the reports described in Section 8.1 of this Indenture and such failure shall continue for five Business Days. THENDefault, so long as such a Servicer Default shall be is continuing, the Control Party Indenture Trustee may (and upon the written direction of the Required Noteholders shall), by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, North Carolina Trust and the Insurer and each Rating Agency Back-up Servicer (a “Termination Notice”), may ) (i) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement, the 2021-1A SUBI Supplement, the 2021-1A SUBI Servicing Agreement and the Indenture and (ii) direct the applicable party to terminate any power of attorney granted to the Servicer or any Subservicer and direct such termination being herein called party to execute a “Service Transfer”)new power of attorney to the Indenture Trustee or its designee. The existence of a Servicer Default may be waived with the consent of the Required Noteholders. Notwithstanding the foregoing, a delay in or failure of performance referred to under paragraph (a) above for an additional period of five (5) Business Days after the applicable grace period or referred to under paragraph (b) or (c) above for a period of forty-five (45) days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by a Force Majeure Event. If, following the expiration of such incremental forty-five (45) day grace period in the case of a delay or failure of performance described in paragraph (b) or (c) above, the applicable delay or failure of performance remains outstanding but the Servicer continues to work diligently to remedy such delay or failure of performance, then the grace period shall be extended for a further thirty (30) days upon notice from the Servicer to the Indenture Trustee. The preceding sentences will not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Issuer and the Depositor with an Officer’s Certificate giving prompt notice of such failure or delay, together with a description of its efforts so to perform its obligations. After receipt by the Servicer of a Termination Notice, and effective on the Trustee of such Termination Notice and subject to the terms of Section 12.2(a)Servicing Transfer Date, the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in the Successor Servicer (a “Servicing Transfer”) appointed by the Indenture Trustee (at the written direction of the Required Noteholders if the Successor Servicer is not the Back-up Servicer or such Successor Servicer, as the case may be, without further action on the part of any Person, Indenture Trustee) pursuant to Section 8.02; and, without limitation, the Indenture Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperatecooperate promptly) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsServicing Transfer. The Servicer agrees to reasonably cooperate and to cause each Subservicer to reasonably cooperate (and each Subservicer agrees to cooperate) with the Indenture Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder and (ii) transferring all duties and obligations of the Servicer hereunder to such Successor Servicer, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service and administer the Pledged Loans provided for under this IndentureAgreement, including without limitation all authority over any all Collections which shall on the date of transfer be held by the Servicer for deposit deposit, or which have been deposited by the Servicer, in a Lockbox the Collection Account or other applicable Note Account, or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer to the Successor Servicer all its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer Loans, together with all other records, correspondence and documents necessary for the continued servicing and administration of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Notwithstanding the foregoing, the Servicer shall allow be allowed to retain a copy of all records, correspondence and documents provided to the Successor Servicer access to in compliance with the Servicer’s officers and employeesrecordkeeping policies or Requirements of Law. The predecessor Servicer shall be responsible for all expenses incurred in transferring the servicing duties to the Successor Servicer. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidentialconfidential or give the Successor Servicer access to software or other intellectual property, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphinterests.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Regional Management Corp.)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made or given by the Servicer under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business Days;
(b) failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture or any other Transaction Facility Document to which the Servicer is a party and such failure continues unremedied for a period of 30 20 days after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Insurer any Noteholder or the Holders of 25% or more of the Aggregate Principal Amount of the NotesDeal Agent;
(c) any representation and warranty made by the Servicer in this Indenture or any other Facility Document to which the Servicer is a party shall prove to have been incorrect in any material respect when made and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and or other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 ten Business Days after the earlier of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer any Noteholder or the Holders of 25% or more of the Aggregate Principal Amount of the NotesDeal Agent;
(d) an Insolvency Event shall occur with respect to the Servicer or the Performance Guarantor; orParent Corporation;
(e) the Servicer shall fail fails to deliver reports to the reports described Trustee in accordance with Section 8.1 8.2 of this Indenture and such failure shall continue remains unremedied for five Business Days. ;
(f) any Indebtedness as defined in the Revolving Credit Agreement of the Parent Corporation or any of its Subsidiaries (as defined in the Revolving Credit Agreement, but in no event including the Depositor, the Issuer or any other securitization entity (of the type described in the definition of Securitization Entity in the Revolving Credit Agreement)) exceeding $50,000,000 in the aggregate, is accelerated after default beyond any applicable grace period provided with respect thereto;
(g) the 12-month rolling Reported EBITDA at the end of any fiscal quarter is less than $400,000,000;
(h) the Servicer fails to deliver reports to the Deal Agent in accordance with Section 8.6 of this Indenture and such failure remains unremedied for five (5) Business Days;
(i) the Consolidated Leverage Ratio for the most recent Rolling Period is greater than 3.5 to 1.0; or
(j) the Consolidated Interest Coverage Ratio for the most recent Rolling Period is less than 3.0 to 1.0, THEN, so long as such Servicer Default shall be continuing, either the Control Party Trustee, or the Majority Facility Investors of all Series 2008-A Notes by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer Servicer and each Rating Agency (and to the Trustee if given by the Majority Facility Investors) (a “Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) Majority Facility Investors is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox the Control Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraph.
Appears in 1 contract
Samples: Indenture and Servicing Agreement (Wyndham Worldwide Corp)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur (and be continuing:is not waived in writing by the Administrative Agent):
(a) any failure by the Servicer to make any payment, transfer or deposit on into the Collection Account, or, if applicable, to give instructions or before notice to the date Collection Account Bank to make such payment, transfer or deposit is (including, without limitation, with respect to the remittance of Collections) as required to be made by this Agreement or given by the Servicer under the terms of this Indenture and such failure remains other Transaction Documents which continues unremedied for a period of two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five (2) Business Days;
(b) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any the other Transaction Document Documents to which the Servicer is a party and such failure the same continues unremedied for a period of 30 days five (5) Business Days (if such failure can be remedied) after the earlier to occur of the date on which the Servicer has actual knowledge of the failure and (i) the date on which written notice of such failure, requiring the same to be remedied, failure shall have been given to received by the Servicer by from the TrusteeAdministrative Agent or any Lender or (ii) the date on which a Responsible Officer of the Servicer, or to the Servicer and the Trustee by the Insurer Originator or the Holders of 25% or more of the Aggregate Principal Amount of the NotesBorrower acquires actual knowledge thereof;
(c) an Insolvency Event with respect to the Servicer;
(d) any representation and failure by the Servicer to deliver any required report or certificate hereunder;
(e) any representation, warranty or certification made by the Servicer in this Indenture any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect in any material respect when made and has continues to be unremedied for a material and adverse impact on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 period of five (5) Business Days (if such failure can be remedied) after the earlier to occur of the date on which the Servicer has actual knowledge of such breach and (i) the date on which written notice of such breach requiring that such breach be remedied, incorrectness shall have been given to received by the Servicer by from the Trustee Administrative Agent or to any Lender or (ii) the Servicer and date on which a Responsible Officer of the Trustee by Servicer, the Insurer Borrower or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(d) an Insolvency Event shall occur with respect to the Servicer or the Performance GuarantorOriginator acquires actual knowledge thereof; or
(ef) any Termination Event shall have occurred; then notwithstanding anything herein to the contrary, the Administrative Agent, by written notice to the Servicer shall fail to deliver the reports described in Section 8.1 of this Indenture and such failure shall continue for five Business Days. THEN, so long as such Servicer Default shall be continuing, the Control Party by notice then given in writing (with a copy to the Collection Account Bank and the Backup Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency ) (a “Servicer Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture Agreement (such termination being herein called a “Service Transfer”). After receipt by other than fees or expenses owed to the Servicer and the Trustee of such Termination Notice and subject which have accrued or been incurred prior to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities delivery of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphTermination Notice).
Appears in 1 contract
Samples: Revolving Credit Agreement (Sparta Commercial Services, Inc.)
Servicer Defaults. If any one of the following events (each, a “"Servicer Default”") shall occur and be continuingoccur:
(ai) any failure by the Servicer Servicer: (x) to make deposit to the Collection Account (A) any payment, transfer or deposit on or before the date such payment, transfer or deposit is amount required to be made or given deposited therein by the Servicer under the terms of this Indenture and (other than any such failure remains unremedied for two Business Days; provided, however, that if resulting from an administrative or technical error of the Servicer is unable to make a paymentin the amount so deposited); or (B) within one (1) Business Day after the Servicer becomes aware that, transfer or deposit when due and such failure is as a result of circumstances beyond an administrative or technical error of the Servicer’s control, any amount previously deposited by the Servicer to the Collection Account was less than the amount required to be deposited therein by the Servicer, the grace period shall be extended amount of such shortfall; or (y) to five Business Daysdeliver to the Trust Collateral Agent or the Insurers the Servicer's Certificate on the related Determination Date;
(bii) failure on the part of the Servicer duly to observe or to perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture the any Basic Document, or any other Transaction Document to which representation or warranty of the Servicer is a party and such failure continues made in this Agreement, any other Basic Document or in any certificate or other writing delivered pursuant to any Basic Document proving to have been incorrect in any material respect as of the time when the same shall have been made, which default shall continue unremedied for a period of 30 days after (or a longer period, not in excess of 60 days, as may be reasonably necessary to remedy such default, if the earlier default is capable of the date on which remedy within 60 days or less and the Servicer delivers an Officer's Certificate to the Indenture Trustee to the effect that it has actual knowledge of commenced, or will promptly commence and diligently pursue, all reasonable efforts to remedy the failure and the date on which default) after (x) there shall have been given written notice of such failure, requiring the same to be remedied, shall have been given (1) to the Servicer, by the Trust Collateral Agent, or (2) to the Servicer by the Trusteeeither Insurer, or to the Servicer if both a Class A Insurer Default and the Trustee a Backup Insurer Default have has occurred and are continuing, by the Insurer or Trust Collateral Agent at the Holders direction of Class A Noteholders representing at least 25% or more the Outstanding Class A Note Balance; or (y) discovery of such failure by an officer of the Aggregate Principal Amount Servicer; or
(iii) the entry of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, receiver, or liquidator for the Servicer or any of its subsidiaries in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings, or for the winding up or liquidation of its respective affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the entry of any decree or order for relief in respect of the Notes;Servicer or any of its subsidiaries under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, or similar law, whether now or hereafter in effect, which decree or order for relief continues unstayed and in effect for a period of 60 consecutive days; or
(civ) any representation and warranty made the consent by the Servicer in this Indenture shall prove or any of its subsidiaries to have been incorrect the appointment of a conservator or receiver or liquidator in any material respect when made insolvency, readjustment of debt, marshalling of assets and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation liabilities, or warranty within 30 Business Days after the earlier similar proceedings of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(d) an Insolvency Event shall occur with respect relating to the Servicer or any of its subsidiaries or relating to substantially all of its property; or the Performance Guarantoradmission by the Servicer or any of its subsidiaries in writing of its inability to pay its debts generally as they become due, the filing by the Servicer or any of its subsidiaries of a petition to take advantage of any applicable insolvency or reorganization statute, the making by the Servicer or any of its subsidiaries of an assignment for the benefit of its creditors, or the voluntarily suspension by the Servicer or any of its subsidiaries of payment of its obligations;
(v) the Servicer breaches any Financial Covenant, after giving effect to all notice and grace periods set forth herein; or
(evi) the Servicer shall fail Originator or Servicer, if Credit Acceptance is the Servicer, fails to deliver pay when due Purchase Amounts in excess of $100,000; then, and in each and every case, the reports described in Section 8.1 of this Indenture Trust Collateral Agent, if so requested by the Controlling Party, or if both a Class A Insurer Default and such failure shall continue for five Business Days. THEN, so long as such Servicer Backup Insurer Default shall be have occurred and are continuing, the Control Party Majority Noteholders by notice then given in writing to the Servicer, the Swap CounterpartyBackup Servicer, the Issuer, the Trustee, the Insurer and each Rating Agency Trust Collateral Agent may: (a “Termination Notice”), may A) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement or (B) if Credit Acceptance is the Servicer, reduce its servicing term then in effect to a term of three (3) months. Upon sending or receiving any such notice, the Trust Collateral Agent shall promptly send a copy thereof to the Indenture (such termination being herein called a “Service Transfer”)Trustee, the Owner Trustee, the Rating Agencies, the Class A Insurer, the Backup Insurer and to each Class A Noteholder. After Within 30 days after the receipt by the Backup Servicer and the Trustee of such Termination Notice written notice (if such notices relates to terminating the Servicer) and subject to the terms of Section 12.2(a8.02(a)), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall Agreement, whether with respect to the Class A Notes or the Dealer Loans or Contracts or otherwise, shall, without further action, pass to and be vested in the Trustee Backup Servicer or such Successor Servicer, successor Servicer as the case may be, without further action on the part of any Person, be appointed under Section 8.02; and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) Backup Servicer is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicerpredecessor servicer, as attorney-in-fact or otherwise, any and all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of servicing rightsthe Dealer Loans and the Contracts and related documents, or otherwise. The predecessor Servicer agrees to shall cooperate with the Trustee successor Servicer and such Successor the Backup Servicer in effecting the termination of the responsibilities and rights of the predecessor Servicer to conduct servicing hereunderunder this Agreement, including without limitation the transfer to such Successor the Backup Servicer or the successor Servicer for administration by it of all authority of cash amounts that shall at the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer time be held by the Servicer predecessor servicer for deposit in a Lockbox Account deposit, or which shall thereafter be received by the Servicer with respect to the Pledged Loansa Dealer Loan or related Contract, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing related accounts and records maintained by the Successor Servicer’s personnel access . All Transition Expenses shall be paid by the predecessor servicer upon presentation of reasonable documentation of such costs and expenses. If such Transition Expenses are not paid to the successor Servicer by the predecessor Servicer’s premises for , such Transition Expenses shall be paid under Section 5.08(a)(i) hereof. In addition, the purpose of collecting payments on Controlling Party shall have the Pledged Loans made at option to pay the Transition Expenses. If the Controlling Party elects to pay any such premises. The Servicer Transition Expenses, the amount paid by the Controlling Party shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing constitute part of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access Reimbursement Obligations owed to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphit.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Credit Acceptance Corporation)
Servicer Defaults. If any one of the following events (each, a “"Servicer Default”") shall occur and be continuingoccur:
(ai) any failure by the Servicer Servicer: (x) to make deposit to the Collection Account (A) any payment, transfer or deposit on or before the date such payment, transfer or deposit is amount required to be made or given deposited therein by the Servicer under the terms of this Indenture and (other than any such failure remains unremedied for two Business Days; provided, however, that if resulting from an administrative or technical error of the Servicer is unable to make a paymentin the amount so deposited); or (B) within one (1) Business Day after the Servicer becomes aware that, transfer or deposit when due and such failure is as a result of circumstances beyond an administrative or technical error of the Servicer’s control, any amount previously deposited by the Servicer to the Collection Account was less than the amount required to be deposited therein by the Servicer, the grace period shall be extended amount of such shortfall; or (y) to five Business Daysdeliver to the Trust Collateral Agent or the Insurers the Servicer's Certificate on the related Determination Date;
(bii) failure on the part of the Servicer duly to observe or to perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture any Basic Document, or any other Transaction Document to which representation or warranty of the Servicer is a party and such failure continues made in this Agreement, any other Basic Document or in any certificate or other writing delivered pursuant to any Basic Document proving to have been incorrect in any material respect as of the time when the same shall have been made, which default, if capable of cure, shall continue unremedied for a period of 30 days after (or a longer period, not in excess of 60 days, as may be reasonably necessary to remedy such default, if the earlier default is capable of the date on which remedy within 60 days or less and the Servicer delivers an Officer's Certificate to the Indenture Trustee to the effect that it has actual knowledge of commenced, or will promptly commence and diligently pursue, all reasonable efforts to remedy the failure and the date on which default) after (x) there shall have been given written notice of such failure, requiring the same to be remedied, shall have been given (1) to the Servicer, by the Trust Collateral Agent, or (2) to the Servicer by the Trusteeeither Insurer, or to the Servicer if both a Class A Insurer Default and the Trustee a Backup Insurer Default have has occurred and are continuing, by the Insurer or Trust Collateral Agent at the Holders direction of Class A Noteholders representing at least 25% or more the Outstanding Class A Note Balance; or (y) discovery of such failure by an officer of the Aggregate Principal Amount Servicer; or
(iii) the entry of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, receiver, or liquidator for the Servicer or any of its subsidiaries in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings, or for the winding up or liquidation of its respective affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the entry of any decree or order for relief in respect of the Notes;Servicer or any of its subsidiaries under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, or similar law, whether now or hereafter in effect, which decree or order for relief continues unstayed and in effect for a period of 60 consecutive days; or
(civ) any representation and warranty made the consent by the Servicer in this Indenture shall prove or any of its subsidiaries to have been incorrect the appointment of a conservator or receiver or liquidator in any material respect when made insolvency, readjustment of debt, marshalling of assets and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation liabilities, or warranty within 30 Business Days after the earlier similar proceedings of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(d) an Insolvency Event shall occur with respect relating to the Servicer or any of its subsidiaries or relating to substantially all of its property; or the Performance Guarantoradmission by the Servicer or any of its subsidiaries in writing of its inability to pay its debts generally as they become due, the filing by the Servicer or any of its subsidiaries of a petition to take advantage of any applicable insolvency or reorganization statute, the making by the Servicer or any of its subsidiaries of an assignment for the benefit of its creditors, or the voluntarily suspension by the Servicer or any of its subsidiaries of payment of its obligations;
(v) the Servicer breaches any Financial Covenant; or
(evi) the Servicer shall fail Originator or Servicer, if Credit Acceptance is the Servicer, fails to deliver pay when due Purchase Amounts in excess of $100,000; then, and in each and every case, the reports described in Section 8.1 of this Indenture Trust Collateral Agent, if so requested by the Controlling Party, or if both a Class A Insurer Default and such failure shall continue for five Business Days. THEN, so long as such Servicer Backup Insurer Default shall be have occurred and are continuing, the Control Party Majority Noteholders by notice then given in writing to the Servicer, the Swap CounterpartyBackup Servicer, the Issuer, the Trustee, the Insurer and each Rating Agency Trust Collateral Agent may: (a “Termination Notice”), may A) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement or (B) if Credit Acceptance is the Servicer, reduce its servicing term then in effect to a term of three (3) months. Upon sending or receiving any such notice, the Trust Collateral Agent shall promptly send a copy thereof to the Indenture (such termination being herein called a “Service Transfer”)Trustee, the Owner Trustee, the Rating Agencies, the Class A Insurer, the Backup Insurer and to each Class A Noteholder. After Within 30 days after the receipt by the Backup Servicer and the Trustee of such Termination Notice written notice (if such notices relates to terminating the Servicer) and subject to the terms of Section 12.2(a8.02(a)), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall Agreement, whether with respect to the Class A Notes or the Dealer Loans or Contracts or otherwise, shall, without further action, pass to and be vested in the Trustee Backup Servicer or such Successor Servicer, successor Servicer as the case may be, without further action on the part of any Person, be appointed under Section 8.02; and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) Backup Servicer is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicerpredecessor servicer, as attorney-in-fact or otherwise, any and all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of servicing rightsthe Dealer Loans and the Contracts and related documents, or otherwise. The predecessor Servicer agrees to shall cooperate with the Trustee successor Servicer and such Successor the Backup Servicer in effecting the termination of the responsibilities and rights of the predecessor Servicer to conduct servicing hereunderunder this Agreement, including without limitation the transfer to such Successor the Backup Servicer or the successor Servicer for administration by it of all authority of cash amounts that shall at the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer time be held by the Servicer predecessor servicer for deposit in a Lockbox Account deposit, or which shall thereafter be received by the Servicer with respect to the Pledged Loansa Dealer Loan or related Contract, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing related accounts and records maintained by the Successor Servicer’s personnel access . All Transition Expenses shall be paid by the predecessor servicer upon presentation of reasonable documentation of such costs and expenses. If such Transition Expenses are not paid to the successor Servicer by the predecessor Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at , such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer Transition Expenses shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraph.paid under
Appears in 1 contract
Samples: Sale and Servicing Agreement (Credit Acceptance Corporation)
Servicer Defaults. If any one of the following events (each, a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Deal Agent as required by this Agreement including, without limitation, while ABL is Servicer, any payment required to be made under the Backup Servicer and Collateral Custodian Fee Letter, or to deliver any required Monthly Report or other Required Reports hereunder on or before the date occurring two Business Days after the date such payment, transfer transfer, deposit, instruction of notice or deposit report is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysAgreement;
(b) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any other Transaction Document to the Purchase Agreement which has a material adverse effect on the Servicer is a party and such failure Secured Parties, which continues unremedied for a period of 30 days after the earlier first to occur of the date on which the Servicer has actual knowledge of the failure and (i) the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Trustee, or to Deal Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(c) any representation and representation, warranty or certification made by the Servicer in this Indenture Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect in any material respect when made and made, which has a material and adverse impact effect on the Trustee’s interest in the Pledged Loans Secured Parties and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within which continues to be unremedied for a period of 30 Business Days days after the earlier first to occur of the date on which the Servicer has actual knowledge of such breach and (i) the date on which written notice of such breach incorrectness requiring that such breach the same to be remedied, remedied shall have been given to the Servicer by the Trustee or to Deal Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(d) an Insolvency Event shall occur with respect to the Servicer or the Performance Guarantor; orABFS;
(e) any material delegation of the Servicer's duties which is not permitted by Section 7.2;
(f) any financial or Asset information reasonably requested by the Deal Agent or the Purchaser as provided herein is not reasonably provided as requested;
(g) the rendering against the Servicer shall fail to deliver or ABFS of a final judgment, decree or order for the reports described payment of money in Section 8.1 excess of this Indenture U.S. $1,000,000 and the continuance of such judgment, decree or order unsatisfied and in effect for any period of 61 consecutive days without a stay of execution;
(h) the failure shall continue for five Business Days. THEN, so long as such Servicer Default shall be continuing, the Control Party by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency (a “Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by or ABFS to make any payment due with respect to aggregate recourse debt or other obligations with an aggregate principal amount exceeding U.S. $1,000,000 or the Servicer and the Trustee occurrence of any event or condition which would permit acceleration of such Termination Notice and subject to recourse debt or other obligations if such event or condition has not been waived;
(i) any change in the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities control of the Servicer hereunder until or ABFS which takes the date that form of either a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of merger or consolidation in which the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor ServicerABFS, as the case may be, without further action on is not the part surviving entity;
(j) ABFS shall fail to have a GAAP net worth (excluding goodwill) of at least $20,000,000; or
(i) the average Delinquency Ratio for any PersonPayment Date and the two immediately preceding Payment Dates exceeds 4.0%, and, without limitation, or (ii) the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided average Default Ratio for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraph.Payment Date exceeds 3.5
Appears in 1 contract
Samples: Receivables Purchase Agreement (American Business Financial Services Inc /De/)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (including without limitation with respect to Collections) as required by this Agreement which continues unremedied for a period of one (1) Business Day;
(b) any failure by the Servicer to give instructions or notice to the Administrative Agent and each Purchaser Agent as required by this Agreement, or to deliver any required Monthly Report or other Required Reports hereunder on or before the date occurring two (2) Business Days after the date such paymentinstruction, transfer notice or deposit report is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysAgreement;
(bc) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any the other Transaction Document Documents to which the Servicer is a party and such failure the same continues unremedied for a period of 30 thirty (30) days after the earlier to occur of the date on which the Servicer has actual knowledge of the failure and (i) the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Trustee, Administrative Agent or to any Purchaser Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(cd) any representation and representation, warranty or certification made by the Servicer in this Indenture any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect in any material respect when made and made, which has a material and adverse impact Material Adverse Effect on the Trustee’s interest in Administrative Agent, any Purchaser Agent or the Pledged Loans Secured Parties and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days which continues to be unremedied for a period of thirty (30) days after the earlier to occur of the date on which the Servicer has actual knowledge of such breach and (i) the date on which written notice of such breach incorrectness requiring that such breach the same to be remedied, remedied shall have been given to the Servicer by the Trustee Administrative Agent or to any Purchaser Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(de) an Insolvency Event shall occur with respect to the Servicer;
(f) any material delegation of the Servicer’s duties that is not permitted by Section 6.1;
(g) any financial or other information reasonably requested by the Administrative Agent is not provided as requested within a reasonable amount of time following such request;
(h) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of United States $10,000,000, individually or in the aggregate, and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than sixty (60) consecutive days without a stay of execution;
(i) the failure of the Servicer to make any payment due with respect to any recourse debt or other obligations having a principal amount of $25,000,000 or greater, or the Performance Guarantoroccurrence of any event or condition that would permit acceleration of such recourse debt or other obligations, if not waived in accordance with, and within the requisite time periods, if any, for waivers specified in, the related underlying debt agreements;
(j) the Servicer fails to maintain a GAAP balance sheet minimum net worth of at least $650,000,000 plus 75% of any new equity issued after March 31, 2004 and 75% of cumulative positive net income after March 31, 2004;
(k) [Reserved];
(l) the date on which (a) any person or group acquires any “beneficial ownership” (either directly or indirectly) of capital stock or other equity interests in CapitalSource Inc. having more than 50% of the voting power for the election of directors of CapitalSource Inc., or (b) (except in connection with “term” asset-backed securities transactions) CapitalSource Inc. sells substantially all of the assets of CapitalSource Inc.;
(m) the Servicer fails in any respect to comply with the Credit and Collection Policy regarding the servicing of the Assets and such failure has a material adverse effect on the collectibility, enforcement or otherwise with respect to the Assets;
(n) the Servicer consents or agrees to, or otherwise permits to occur, any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy (after the adoption of same) in whole or in part that could be reasonably expected to have a Material Adverse Effect upon the Assets, the Administrative Agent, any Purchaser Agent or the Secured Parties, without the prior written consent of the Administrative Agent and each Purchaser Agent;
(o) CapitalSource Finance ceases to be the Servicer; or
(ep) the Servicer shall fail fails to deliver maintain the reports described in Section 8.1 of this Indenture and such failure shall continue Loan Loss Reserve for five Business Days. THENany Watchlist Loans; then notwithstanding anything herein to the contrary, so long as any such Servicer Default shall be continuingnot have been remedied within any applicable cure period prior to the date of the Servicer Termination Notice (defined below), the Control Party Administrative Agent, by written notice then given in writing to the Servicer, Servicer (with a copy to the Swap Counterparty, the Issuer, the Trustee, the Insurer Backup Servicer and each Rating Agency Agency) (a “Servicer Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphAgreement.
Appears in 1 contract
Samples: Loan Certificate and Servicing Agreement (Capitalsource Inc)
Servicer Defaults. If any one of the following events (each, a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (including without limitation with respect to Collections) as required by this Agreement which continues unremedied for a period of one (1) Business Day;
(b) any failure by the Servicer to give instructions or notice to the Administrative Agent and the Purchaser Agent as required by this Agreement, or to deliver any required Monthly Report or other Required Reports hereunder on or before the date occurring two (2) Business Days after the date such paymentinstruction, transfer notice or deposit report is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysAgreement;
(bc) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any the other Transaction Document Documents to which the Servicer is a party and such failure the same continues unremedied for a period of 30 thirty (30) days after the earlier to occur of the date on which the Servicer has actual knowledge of the failure and (i) the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Trustee, or to Administrative Agent and the Purchaser Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(cd) any representation and representation, warranty or certification made by the Servicer in this Indenture any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect in any material respect when made and made, which has a material and adverse impact Material Adverse Effect on the Trustee’s interest in Administrative Agent, the Pledged Loans Purchaser Agent or the Secured Parties and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days which continues to be unremedied for a period of thirty (30) days after the earlier to occur of the date on which the Servicer has actual knowledge of such breach and (i) the date on which written notice of such breach incorrectness requiring that such breach the same to be remedied, remedied shall have been given to the Servicer by the Trustee Administrative Agent or to the Purchaser Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(de) an Insolvency Event shall occur with respect to the Servicer Servicer;
(f) any material delegation of the Servicer's duties that is not permitted by Section 6.1;
(g) any financial or other information reasonably requested by the Administrative Agent, the Purchaser Agent or the Performance GuarantorPurchaser is not provided as requested within a reasonable amount of time following such request;
(h) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of United States $5,000,000, individually or in the aggregate, and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than sixty (60) consecutive days without a stay of execution;
(i) the failure of the Servicer to make any payment due with respect to any recourse debt or other obligations, which debt or other obligations are in excess of United States $5,000,000, individually or in the aggregate, or the occurrence of any event or condition that would permit acceleration of such recourse debt or other obligations whether or not waived;
(j) the Servicer fails to maintain a GAAP balance sheet net worth equal to at least 90% of the total drawn capital of the Servicer;
(k) any change in the management of the Servicer (whether by resignation, termination, disability, death or lack of day to day management) relating to Xxxx Xxxxxxx, unless the same is waived in writing by the Administrative Agent and the Purchaser Agent;
(l) any change in the control of the Servicer that takes the form of either a merger or consolidation that does not comply with the provisions of Section 5.5;
(m) the Servicer fails in any material respect to comply with the Credit and Collection Policy regarding the servicing of the Assets;
(n) the Servicer consents or agrees to, or otherwise permits to occur, any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy (after the adoption of same) in whole or in part that could be reasonably expected to have a Material Adverse Effect upon the Assets, the Administrative Agent, the Purchaser Agent or the Secured Parties, without the prior written consent of the Administrative Agent and the Purchaser Agent;
(o) CapitalSource Finance ceases to be the Servicer; or
(ep) the Servicer shall fail fails to deliver maintain the reports described in Section 8.1 of this Indenture and such failure shall continue Loan Loss Reserve for five Business Days. THENany Watchlist Loans; then notwithstanding anything herein to the contrary, so long as any such Servicer Default shall be continuingnot have been remedied within any applicable cure period prior to the date of the Servicer Termination Notice (defined below), the Control Party Administrative Agent, by written notice then given in writing to the Servicer (with a copy to the Backup Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency ) (a “"Servicer Termination Notice”"), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphAgreement.
Appears in 1 contract
Samples: Loan Certificate and Servicing Agreement (Capitalsource Inc)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made or given by the Servicer under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business Days;
(b) failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture or any other Transaction Document to which the Servicer is a party and such failure continues unremedied for a period of 30 days after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(c) any representation and warranty made by the Servicer in this Indenture shall prove to have been incorrect in any material respect when made and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days after the earlier of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(d) an Insolvency Event shall occur with respect to the Servicer or the Performance Guarantor; or
(e) the Servicer shall fail to deliver the reports described in Section 8.1 of this Indenture and such failure shall continue for five Business Days. THEN, so long as such Servicer Default shall be continuing, the Holders of Control Party by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer Trustee and each Rating Agency (a “Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Holders of Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox the Control Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraph.
Appears in 1 contract
Samples: Indenture and Servicing Agreement (Wyndham Worldwide Corp)
Servicer Defaults. If any one of the following events (each, a “"Servicer Default”") shall occur and be continuingcontinuing with respect to the Servicer:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee to make such payment, transfer or deposit or to give notice to the Indenture Trustee as to any action to be taken under any Enhancement Agreement on or before the date occurring five days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysAgreement;
(b) failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture or Agreement which has a material adverse effect on the Noteholders of any other Transaction Document to Series, which the Servicer is a party and such failure continues unremedied for a period of 30 60 days after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee, or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(c) the Servicer shall delegate its duties under this Agreement, except as permitted by Sections 3.01 and 5.07;
(d) any representation and representation, warranty or certification made by the Servicer in this Indenture Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect in any material respect when made and made, which has a material and adverse impact effect on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days after the earlier rights of the date on Noteholders of any Series and which the Servicer has actual knowledge material adverse effect continues for a period of such breach and 60 days after the date on which written notice of such breach thereof, requiring that such breach the same to be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the NotesIndenture Trustee;
(d) an Insolvency Event shall occur with respect to the Servicer or the Performance Guarantor; or
(e) the Servicer shall fail consent to deliver the reports described appointment of a conservator or receiver or liquidator or other similar official in Section 8.1 any bankruptcy, insolvency, readjustment of this Indenture debt, marshalling of assets and liabilities or similar proceedings of or relating to 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 or receiver or liquidator or other similar official in any insolvency, 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 the Servicer and such failure decree or order shall continue have remained in force undischarged or unstayed; or the 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 bankruptcy, insolvency or reorganization statute, make any assignment for five Business Days. THENthe benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as such the Servicer Default shall be continuingnot have been remedied, the Control Party Indenture Trustee, by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency Servicer (a “"Termination Notice”"), may terminate all but not less than all of the rights and obligations (other than its obligations that have accrued up to the time of such termination) of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”)Agreement and in and to the Receivables and the proceeds thereof. After receipt by the Servicer of a Termination Notice, and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until 40 TRANSFER AND SERVICING AGREEMENT on the date that a Successor Servicer shall have been appointed by the Indenture Trustee pursuant to Section 12.2 and 6.02, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in the Trustee or such a Successor Servicer, as the case may be, without further action on the part of any Person, Servicer (a "Service Transfer") and, without limitation, the Indenture Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans Receivables provided for under this IndentureAgreement, including without limitation all authority over any all Collections which shall on the date of transfer be held by the Servicer for deposit deposit, or which have been deposited by the Servicer, in a Lockbox Account the Collection Account, or which shall thereafter be received by the Servicer with respect to the Pledged LoansReceivables, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans Receivables in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 5.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest interest;
(f) failure on the part of the Servicer to engage a back-up Servicer with 180 days of the Initial Closing Date. Notwithstanding the foregoing, a delay in or failure of performance under Section 6.01(a) for a period of five Business Days, under Section 6.01(b) for a period of 60 days or under Section 6.01(d) for a period of 60 days, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and as such delay or failure was caused by an act of God or the public enemy, acts of declares or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall be satisfactory not relieve the Servicer from using its best efforts to perform its respective obligations in form a timely manner in accordance with the terms of this Agreement and substance the Servicer shall provide the Indenture Trustee, any Agents, any Enhancement Providers and the Transferor with an Officers' Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to the Successor Servicerperform its obligations. The Servicer hereby consents to shall immediately notify the entry against it Indenture Trustee, and each Rating Agency in writing of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphDefault.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (CNH Wholesale Receivables Inc)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (including without limitation with respect to Collections) as required by this Agreement which continues unremedied for a period of one Business Day;
(b) any failure by the Servicer to give instructions or notice to the Administrative Agent and each Purchaser Agent as required by this Agreement, or to deliver any required Monthly Report or other Required Reports hereunder on or before the date occurring two Business Days after the date such paymentinstruction, transfer notice or deposit report is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysAgreement;
(bc) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any the other Transaction Document Documents to which the Servicer is a party and such failure the same continues unremedied for a period of 30 thirty (30) days after the earlier to occur of the date on which the Servicer has actual knowledge of the failure and (i) the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Trustee, or to Administrative Agent and each Purchaser Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(cd) any representation and representation, warranty or certification made by the Servicer in this Indenture any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect in any material respect when made and made, which has a material and adverse impact Material Adverse Effect on the Trustee’s interest in Administrative Agent, any Purchaser Agent or the Pledged Loans Secured Parties and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days which continues to be unremedied for a period of thirty (30) days after the earlier to occur of the date on which the Servicer has actual knowledge of such breach and (i) the date on which written notice of such breach incorrectness requiring that such breach the same to be remedied, remedied shall have been given to the Servicer by the Trustee Administrative Agent or to any Purchaser Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(de) an Insolvency Event shall occur with respect to the Servicer;
(f) any material delegation of the Servicer’s duties that is not permitted by Section 6.1;
(g) any financial or other information reasonably requested by the Administrative Agent, any Purchaser Agent or any Purchaser is not provided as requested within a reasonable amount of time following such request;
(h) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of $10,000,000, individually or in the aggregate, and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than sixty (60) consecutive days without a stay of execution;
(i) the failure of the Servicer to make any payment due with respect to any recourse debt or other obligations, which debt or other obligations are in excess of $10,000,000, individually or in the aggregate, or the Performance Guarantoroccurrence of any event or condition that would permit acceleration of such recourse debt or other obligations whether or not waived;
(j) CapitalSource Inc.’s Consolidated Tangible Net Worth is less than (i) $1,015,000,000 plus (ii) 70% of the cumulative Net Proceeds of Capital Stock/Conversion of Debt received at any time after December 31, 2005;
(k) [Reserved];
(l) the Servicer fails in any material respect to comply with the Credit and Collection Policy regarding the servicing of the Collateral;
(m) the Servicer consents or agrees to, or otherwise permits to occur, any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy (after the adoption of same) in whole or in part that could be reasonably expected to have a Material Adverse Effect upon the Collateral, the Administrative Agent, any Purchaser Agent or the Secured Parties, without the prior written consent of the Administrative Agent and each Purchaser Agent; or
(en) CSE Mortgage ceases to be the Servicer shall fail Servicer. then notwithstanding anything herein to deliver the reports described in Section 8.1 of this Indenture and such failure shall continue for five Business Days. THENcontrary, so long as any such Servicer Default shall be continuingnot have been remedied within any applicable cure period prior to the date of the Servicer Termination Notice (defined below), the Control Party Administrative Agent, by written notice then given in writing to the Servicer (with a copy to the Backup Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency ) (a “Servicer Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphAgreement.
Appears in 1 contract
Servicer Defaults. If any one of the following events ----------------- (each, a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer or, if First USA is the Servicer, the Seller, to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee to make such payment, transfer or deposit or to give notice to the Trustee as to any required drawing or payment under any Enhancement on or before the date occurring five days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer Agreement or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business Daysany Supplement;
(b) failure on the part of the Servicer or, if First USA is the Servicer, the Seller, duly to observe or perform any other covenants or agreements of the Servicer or, if First USA is the Servicer, of the Seller, set forth in this Indenture Agreement or any other Transaction Document to Supplement which has a material adverse effect on the Servicer is a party and such failure Certificateholders, which continues unremedied for a period of 30 60 days after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer or the Seller, as the case may be, by the Trustee, or to the Servicer or the Seller, as the case may be, and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests in the Trust aggregating not less than 50% of the Invested Amount of any Series adversely affected thereby; or the Servicer shall assign its duties under this Agreement, except as permitted by subsection 3.01(b)(v) of the Agreement and Section 8.07 of the Agreement;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders and which material adverse effect continues for Certificateholders for a period of 60 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Insurer or the Holders of 25Investor Certificates evidencing Undivided Interests in the Trust aggregating not less than 50% or more of the Aggregate Principal Invested Amount of the Notes;
(c) any representation and warranty made by the Servicer in this Indenture shall prove to have been incorrect in any material respect when made and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days after the earlier of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the NotesSeries adversely affected thereby;
(d) an Insolvency Event the Servicer shall occur with respect consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to 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 Performance Guarantorpremises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed; or
(e) or the Servicer shall fail admit in writing its inability to deliver pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the reports described benefit of its creditors or voluntarily suspend payment of its obligations; then, in Section 8.1 the event of this Indenture and such failure shall continue for five Business Days. THENany Servicer Default, so long as such the Servicer Default shall be continuingnot have been remedied, either the Control Party Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Aggregate Invested Amount, by notice then given in writing to the Servicer, Servicer (and to the Swap Counterparty, Trustee if given by the Issuer, the Trustee, the Insurer and each Rating Agency Investor Certificateholders) (a “"Termination Notice”"), may terminate all but not less than all of the rights and obligations of the Servicer as Servicer under this Indenture Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interests as the Seller and as a holder of the Exchangeable Seller's Certificate evidencing the Seller Interest under this Agreement); provided, however, if within 60 days of receipt -------- ------- of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with subsection 10.02(c) of the Agreement to act as a Successor Servicer and receives an Officers' Certificate of the Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, then the Trustee shall grant a right of first refusal to the Servicer (for so long as the Seller is the Servicer) which would permit the Servicer at its option to purchase the interest of all Investor Certificateholders on the Distribution Date in the next calendar month. The purchase price for such termination being herein called interest with respect to each Series of Investor Certificates shall be equal to the higher of (i) the Invested Amount for such Series on the Distribution Date of such purchase plus accrued and unpaid interest thereon at the applicable Certificate Rate through the end of the Interest Accrual Period preceding such Distribution Date and (ii) a “Service Transfer”price equivalent to the average of bids quoted on the Record Date or, if not a Business Day, on the next succeeding Business Day by at least two recognized dealers selected by the Trustee (which may be selected from the list attached as Schedule 4), for the purchase by such dealers of a security similar to the Investor Certificates of such Series and rated in the highest category by each Rating Agency with a remaining maturity approximately equal to the remaining maturity of the Investor Certificates of such Series. The Servicer shall notify the Trustee in writing prior to the Record Date for the Distribution Date of the purchase, if it is exercising such right of first refusal. If it exercises the right of first refusal, the Servicer shall deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that the purchase would not be considered a fraudulent conveyance and deposit the purchase price into the Collection Account on the Transfer Date preceding such Distribution Date in immediately available funds. If the Servicer does not exercise such right of first refusal, the Trustee shall not offer the interest of the Investor Certificateholders to any other Person. Notwithstanding anything to the contrary in this Agreement, the entire amount of the applicable purchase price shall be distributed to the Investor Certificateholders of each Series on the Distribution Date following deposit pursuant to Section 12.03 of the Agreement, and in the case of clause (ii) above such deposit shall be allocated on the basis of the prices quoted for each such Series. Except in the event of manifest error, the allocation of the Trustee shall be final and binding upon all Investor Certificateholders and, by acceptance of its Certificate, any Investor Certificateholder agrees that the Trustee shall not be liable therefor. After receipt by the Servicer of a Termination Notice, and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 12.2 and 10.02 of the Agreement, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in the Trustee or such a Successor Servicer, as the case may be, without further action on the part of any Person, Servicer (a "Service Transfer"); and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-in- fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including including, without limitation limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans Receivables provided for under this IndentureAgreement, including including, without limitation limitation, all authority over any all Collections which shall on the date of transfer be held by the Servicer for deposit deposit, or which have been deposited by the Servicer, in a Lockbox Account the Collection Account, or which shall thereafter be received by the Servicer with respect to the Pledged LoansReceivables, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans Receivables in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 10.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest interest. Notwithstanding the foregoing, a delay in or failure of performance under subsection 10.01(a) of the Agreement for a period of 10 Business Days or under subsection 10.01(b) or (c) of the Agreement for a period of 60 Business Days, shall not constitute a Servicer Default, if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and as such delay or failure was caused by an Act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall be satisfactory not relieve the Servicer from using its best efforts to perform its respective obligations in form a timely manner in accordance with the terms of this Agreement and substance the Servicer shall provide the Trustee, any Enhancement Provider, the Seller and the Investor Certificateholders with an Officers' Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts to the Successor Servicerso perform its obligations. The Servicer hereby consents to shall immediately notify the entry against it Trustee in writing of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphDefault.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First Chicago Master Trust Ii)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made or given by the Servicer under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business Days;
(b) failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture or any other Transaction Facility Document to which the Servicer is a party and such failure continues unremedied for a period of 30 20 days after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Insurer any Noteholder or the Holders of 25% or more of the Aggregate Principal Amount of the NotesDeal Agent;
(c) any representation and warranty made by the Servicer in this Indenture or any other Facility Document to which the Servicer is a party shall prove to have been incorrect in any material respect when made and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and or other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 ten Business Days after the earlier of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer any Noteholder or the Holders of 25% or more of the Aggregate Principal Amount of the NotesDeal Agent;
(d) an Insolvency Event shall occur with respect to the Servicer or the Performance Guarantor; orParent Corporation;
(e) the Servicer shall fail fails to deliver reports to the reports described Trustee in accordance with Section 8.1 8.2 of this Indenture and such failure shall continue remains unremedied for five Business Days. ;
(f) any Indebtedness (as defined in the Revolving Credit Agreement) of the Parent Corporation or any of its Material Subsidiaries (as defined in the Revolving Credit Agreement) exceeding $50,000,000 in the aggregate, is accelerated after default beyond any applicable grace period provided with respect thereto;
(g) the Servicer fails to deliver reports to the Deal Agent in accordance with Section 8.6 of this Indenture and such failure remains unremedied for five (5) Business Days;
(h) so long as WCF is the Servicer, the breach by the Parent Corporation or any of its Affiliates of any covenant under the Revolving Credit Agreement to the extent such covenant requires compliance by the Parent Corporation or its Affiliates with a leverage ratio, an interest coverage ratio, or a minimum EBITDA level, whether or not such breach is waived pursuant to the terms of the Revolving Credit Agreement, THEN, so long as such Servicer Default shall be continuing, either the Control Party Trustee, or the Majority Facility Investors of all Series 2017-A Notes by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer Servicer and each Rating Agency (and to the Trustee if given by the Majority Facility Investors) (a “Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such 98 Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) Majority Facility Investors is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox the Control Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraph.
Appears in 1 contract
Samples: Indenture and Servicing Agreement (Wyndham Worldwide Corp)
Servicer Defaults. If any one Upon the occurrence of the following events (each, a “Servicer Default”) shall occur , and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made or given by the Servicer under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business Days;
(b) failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture or any other Transaction Document to which the Servicer is a party and such failure continues unremedied for a period of 30 days after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(c) any representation and warranty made by the Servicer in this Indenture shall prove to have been incorrect in any material respect when made and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days after the earlier of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(d) an Insolvency Event shall occur with respect to the Servicer or the Performance Guarantor; or
(e) the Servicer shall fail to deliver the reports described in Section 8.1 of this Indenture and such failure shall continue for five Business Days. THEN, so long as such Servicer Default shall be continuingnot have been cured, remedied or waived by the Control Party by Majority Holders:
(A) By notice of a Servicer Default then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency Servicer (such notice being a “Termination Notice”), the Majority Holders may terminate all but not less than all of the rights and obligations of the Servicer as Servicer servicer under this Indenture Agreement and any related Finance Document with respect to which such notice was so given. None of the Collateral Agent, the Paying Agent or the Calculation Agent shall be deemed to have knowledge of a Servicer Default until a Responsible Officer thereof has received written notice thereof.
(such termination being herein called a “Service Transfer”). B) After receipt by the Servicer of a Termination Notice, and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until on the date that a Successor Servicer shall have been appointed by the Majority Holders pursuant to Section 12.2 and 17.2, all authority and power of the Servicer under this Indenture Agreement and each other Finance Document shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, Servicer (a “Servicing Transfer”); and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest Majority Holders are hereby authorized, empowered and is irrevocable) is hereby authorized and empowered instructed (upon the failure of the Servicer to cooperatecooperate or to execute or deliver such documents or instruments) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer Servicing Transfer including, without limitation, all actions necessary or advisable to collect and direct payments in respect of servicing rightsCollections and to enforce the Collateral Agent’s rights and remedies with respect to the Collateral. The initial Successor Servicer shall be the Backup Servicer, subject to the conditions set forth herein and the ability of the Backup Servicer to appoint a subservicer for certain functions. The Servicer hereby agrees to cooperate cooperate, at its sole cost and expense, with the Trustee Majority Holders and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder and under the applicable Finance Documents, including including, without limitation limitation, the transfer to such Successor Servicer of all authority of the Servicer to service on behalf of the Pledged Loans Holders the Sites and the Contracts as provided for under this IndentureAgreement and under the other applicable Finance Documents, including without limitation all such authority over any all Collections which shall on the date of transfer such Servicing Transfer be held in trust by the Servicer for deposit in a Lockbox Account to any of the Accounts hereunder or any other account, or which shall thereafter be received by the Servicer with respect to the Pledged LoansSites and the Contracts, and (ii) assisting the Successor Servicer. The Servicer shall, at its sole cost and expense, as soon as practicable, and in assisting any event within three (3) Business Days of such Servicing Transfer, (A) assemble such documents, instruments and other records (including computer tapes and disks), which evidence the Successor Servicer in enforcing all rights under this Indenture includingaffected Collateral, without limitation, allowing and which are necessary or desirable to collect the Successor Servicer’s personnel access to affected Sites or Contracts and shall make the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans same available to the Successor Servicer or its designee at a place selected by the Successor Servicer and in such electronic form as the Successor Servicer may reasonably request request, and shall (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections in respect of the Sites or the Contracts in a manner acceptable to the Successor Servicer, and, promptly transfer upon receipt, remit all such cash, checks and instruments to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect or its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphdesignee.
Appears in 1 contract
Samples: Subscription Agreement (Radius Global Infrastructure, Inc.)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit on or before to give notice or instructions to the date such Indenture Trustee to make any required withdrawal or payment, transfer or deposit on the date the Servicer is required to be made or given by the Servicer do so under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s controlAgreement, the Indenture or any Indenture Supplement, or within the applicable grace period shall be extended to period, which will not exceed thirty-five (35) Business Days;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement which has an Adverse Effect on the Noteholders of any Series, Class or any other Transaction Document to Tranche of Notes and which the Servicer is a party and such failure continues unremedied for a period of 30 sixty (60) days after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the Collateral Agent, or to the Servicer Servicer, the Owner Trustee, the Indenture Trustee and the Trustee Collateral Agent by Holders of Notes evidencing not less than 50% of the Insurer aggregate unpaid principal amount of all Series, Classes or Tranches of Notes sustaining such Adverse Effect; or the Holders of 25% Servicer shall assign or more of the Aggregate Principal Amount of the Notesdelegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06;
(c) any representation and representation, warranty or certification made by the Servicer in this Indenture Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect in any material respect when made and made, which has a material and adverse impact an Adverse Effect on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days after the earlier rights of the date on Noteholders of any Series, Class or Tranche of notes and which the Servicer has actual knowledge Adverse Effect continues for a period of such breach and sixty (60) days after the date on which written notice of such breach thereof, requiring that such breach the same to be remedied, shall have been given to the Servicer by the Trustee Owner Trustee, the Indenture Trustee, the Collateral Agent, or to the Servicer Servicer, the Owner Trustee, the Indenture Trustee and the Trustee Collateral Agent by the Insurer or the Holders of 25Notes evidencing not less than 50% or more of the Aggregate Principal Amount aggregate unpaid principal amount of the Notesall Series, Classes or Tranches of Notes to which such representation, warranty or certification relates;
(d) an Insolvency Event the Servicer shall occur with respect consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the Performance Guarantorpremises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (60) days; or the 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 bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) the any other Servicer shall fail to deliver the reports Default described in Section 8.1 of this any Indenture and such failure shall continue for five Business Days. THENSupplement; then, so long as such the Servicer Default shall be continuingnot have been remedied, either the Control Party Indenture Trustee or the Holders of Notes evidencing more than 50% of the aggregate unpaid principal amount of all affected Notes, by notice then given in writing to the Servicer, Servicer and the Swap Counterparty, Owner Trustee (and to the Issuer, Indenture Trustee if given by the Trustee, the Insurer and each Rating Agency Noteholders) (a “Termination Notice”), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer under this Agreement; provided, however, if within sixty (60) days of receipt of a Termination Notice the Indenture (such termination being herein called Trustee does not receive any bids from Eligible Servicers in accordance with subsection 10.02(a) to act as a “Service Transfer”)Successor Servicer and receives an Officer’s Certificate of the Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicer. After receipt by the Servicer of a Termination Notice, and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 12.2 and 10.02, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, Servicer (a “Service Transfer”) and, without limitation, the Indenture Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans Collateral provided for under this IndentureAgreement, including without limitation all authority over any all Collections which shall on the date of transfer be held by the Servicer for deposit deposit, or which have been deposited by the Servicer, in a Lockbox Account the Collection Account, or which shall thereafter be received by the Servicer with respect to the Pledged LoansCollateral, and in assisting the Successor Servicer and in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to Insurance Proceeds and Interchange (if any) applicable to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premisesTrust. The Servicer shall promptly within twenty (20) Business Days transfer its electronic records or electronic copies thereof relating to the Pledged Loans Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans Collateral in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interest and as interests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of ten (10) Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of sixty (60) Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be satisfactory in form and substance to prevented by the Successor Servicer. The Servicer hereby consents to the entry against it exercise of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the provisions terms of this paragraphAgreement and the Servicer shall provide the Indenture Trustee, the Owner Trustee, the Collateral Agent and the Transferor with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Jpmorgan Chase Bank, National Association)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (including without limitation with respect to Collections) as required by this Agreement which continues unremedied for a period of one Business Day;
(b) any failure by the Servicer to give instructions or notice to the Administrative Agent and each Purchaser Agent as required by this Agreement, or to deliver any required Monthly Report or other Required Reports hereunder on or before the date occurring two Business Days after the date such paymentinstruction, transfer notice or deposit report is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysAgreement;
(bc) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any the other Transaction Document Documents to which the Servicer is a party and such failure the same continues unremedied for a period of 30 days after the earlier to occur of the date on which the Servicer has actual knowledge of the failure and (i) the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Trustee, or to Administrative Agent and each Purchaser Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(cd) any representation and representation, warranty or certification made by the Servicer in this Indenture any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect in any material respect when made and made, which has a material and adverse impact Material Adverse Effect on the Trustee’s interest in Administrative Agent, any Purchaser Agent or the Pledged Loans Secured Parties and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within which continues to be unremedied for a period of 30 Business Days days after the earlier to occur of the date on which the Servicer has actual knowledge of such breach and (i) the date on which written notice of such breach incorrectness requiring that such breach the same to be remedied, remedied shall have been given to the Servicer by the Trustee Administrative Agent or to any Purchaser Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(de) an Insolvency Event shall occur with respect to the Servicer;
(f) any material delegation of the Servicer’s duties that is not permitted by Section 6.1;
(g) any financial or other information reasonably requested by the Administrative Agent, any Purchaser Agent or any Purchaser is not provided as requested within a reasonable amount of time following such request;
(h) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of $10,000,000, individually or in the aggregate, and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than 60 consecutive days without a stay of execution;
(i) the failure of the Servicer to make any payment due with respect to any recourse debt or other obligations, which debt or other obligations are in excess of $10,000,000, individually or in the aggregate, or the Performance Guarantoroccurrence of any event or condition that would permit acceleration of such recourse debt or other obligations whether or not waived;
(j) CapitalSource Inc.’s Consolidated Tangible Net Worth is less than (i) $1,015,000,000 plus (ii) 70% of the cumulative Net Proceeds of Capital Stock/Conversion of Debt received at any time after December 31, 2005;
(k) [Reserved];
(l) the Servicer fails in any material respect to comply with the Credit and Collection Policy regarding the servicing of the Collateral; or
(em) the Servicer shall fail consents or agrees to, or otherwise permits to deliver occur, any amendment, modification, change, supplement or rescission of or to the reports described Credit and Collection Policy (after the adoption of same) in Section 8.1 whole or in part that could be reasonably expected to have a Material Adverse Effect upon the Collateral, the Administrative Agent, any Purchaser Agent or the Secured Parties, without the prior written consent of this Indenture the Administrative Agent and such failure shall continue for five Business Dayseach Purchaser Agent. THENthen notwithstanding anything herein to the contrary, so long as any such Servicer Default shall be continuingnot have been remedied within any applicable cure period prior to the date of the Servicer Termination Notice (defined below), the Control Party Administrative Agent (acting at the direction of the Majority Purchaser Agents), by written notice then given in writing to the Servicer (with a copy to the Backup Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency ) (a “Servicer Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphAgreement.
Appears in 1 contract
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made or given by the Servicer under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business Days;
(b) failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture or any other Transaction Facility Document to which the Servicer is a party and such failure continues unremedied for a period of 30 20 days after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Insurer any Noteholder or the Holders of 25% or more of the Aggregate Principal Amount of the NotesDeal Agent;
(c) any representation and warranty made by the Servicer in this Indenture or any other Facility Document to which the Servicer is a party shall prove to have been incorrect in any material respect when made and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and or other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 ten Business Days after the earlier of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer any Noteholder or the Holders of 25% or more of the Aggregate Principal Amount of the NotesDeal Agent;
(d) an Insolvency Event shall occur with respect to the Servicer or the Performance Guarantor; orParent Corporation;
(e) the Servicer shall fail fails to deliver reports to the reports described Trustee in accordance with Section 8.1 8.2 of this Indenture and such failure shall continue remains unremedied for five Business Days. ;
(f) any Indebtedness (as defined in the Revolving Credit Agreement) of the Parent Corporation or any of its Material Subsidiaries (as defined in the Revolving Credit Agreement) exceeding $50,000,000 in the aggregate, is accelerated after default beyond any applicable grace period provided with respect thereto;
(g) the Servicer fails to deliver reports to the Deal Agent in accordance with Section 8.6 of this Indenture and such failure remains unremedied for five (5) Business Days;
(h) so long as WCF is the Servicer, the breach by the Parent Corporation or any of its Affiliates of any covenant under the Revolving Credit Agreement to the extent such covenant requires compliance by the Parent Corporation or its Affiliates with a leverage ratio, an interest coverage ratio, or a minimum EBITDA level, whether or not such breach is waived pursuant to the terms of the Revolving Credit Agreement, THEN, so long as such Servicer Default shall be continuing, either the Control Party Trustee, or the Majority Facility Investors of all Series 2008-A Notes by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer Servicer and each Rating Agency (and to the Trustee if given by the Majority Facility Investors) (a “Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) Majority Facility Investors is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox the Control Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraph.
Appears in 1 contract
Samples: Amended and Restated Indenture and Servicing Agreement (Wyndham Destinations, Inc.)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made or given by the Servicer under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business Days;
(b) failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture or any other Transaction Facility Document to which the Servicer is a party and such failure continues unremedied for a period of 30 20 days after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Insurer any Noteholder or the Holders of 25% or more of the Aggregate Principal Amount of the NotesDeal Agent;
(c) any representation and warranty made by the Servicer in this Indenture or any other Facility Document to which the Servicer is a party shall prove to have been incorrect in any material respect when made and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and or other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 ten Business Days after the earlier of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer any Noteholder or the Holders of 25% or more of the Aggregate Principal Amount of the NotesDeal Agent;
(d) an Insolvency Event shall occur with respect to the Servicer or the Performance Guarantor; orParent Corporation;
(e) the Servicer shall fail fails to deliver reports to the reports described Trustee in accordance with Section 8.1 8.2 of this Indenture and such failure shall continue remains unremedied for five Business Days. ;
(f) any Indebtedness (as defined in the Revolving Credit Agreement) of the Parent Corporation or any of its Material Subsidiaries (as defined in the Revolving Credit Agreement) exceeding $50,000,000 in the aggregate, is accelerated after default beyond any applicable grace period provided with respect thereto;
(g) the 12-month rolling Reported EBITDA at the end of any fiscal quarter is less than $400,000,000;
(h) the Servicer fails to deliver reports to the Deal Agent in accordance with Section 8.6 of this Indenture and such failure remains unremedied for five (5) Business Days;
(i) the Consolidated Leverage Ratio for the most recent Rolling Period is greater than 3.75 to 1.0; or
(j) the Consolidated Interest Coverage Ratio for the most recent Rolling Period is less than 3.0 to 1.0, THEN, so long as such Servicer Default shall be continuing, either the Control Party Trustee, or the Majority Facility Investors of all Series 2008-A Notes by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer Servicer and each Rating Agency (and to the Trustee if given by the Majority Facility Investors) (a “Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) Majority Facility Investors is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox the Control Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraph.
Appears in 1 contract
Samples: Indenture and Servicing Agreement (Wyndham Worldwide Corp)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”"SERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Master Servicer to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made or given by the Servicer under the terms of this Indenture Agreement or a Series Supplement and such failure remains unremedied for two Business Days; providedPROVIDED, howeverHOWEVER, that if the Master Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Master Servicer’s 's control, the grace period shall be extended to five three Business Days;
(b) failure on the part of the Master Servicer duly to observe or perform any other covenants or agreements of the Master Servicer set forth in this Indenture Agreement, a Series Supplement or any other Transaction Facility Document to which the Master Servicer is a party and such failure continues unremedied for a period of 30 20 days after the earlier of the date on which the Master Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Trustee, or to the Master Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesany Noteholder;
(c) any representation and warranty made by the Master Servicer in this Indenture Agreement shall prove to have been incorrect in any material respect when made and has a material and adverse impact on the Trustee’s 's interest in the Pledged Loans and other Pledged Assets and the Master Servicer is not in compliance with such representation or warranty within 30 ten Business Days after the earlier of the date on which the Master Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Master Servicer by the Trustee or to the Master Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesany Noteholder;
(d) an Insolvency Event shall occur with respect to the Master Servicer or the Performance Guarantor; orCendant;
(e) the Master Servicer shall fail fails to deliver reports to the reports described Trustee in accordance with Section 8.1 6.1 of this Indenture Agreement and such failure shall continue remains unremedied for five Business Days; or
(f) the occurrence of any event which is designated as a Servicer Default under any Series Supplement. THEN, so long as such Master Servicer Default shall be continuing, either the Control Party Trustee, or the Majority Holders of all Notes by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer Master Servicer and each Rating Agency (and to the Trustee if given by the Majority Holders) (a “Termination Notice”"TERMINATION NOTICE"), may terminate all of the rights and obligations of the Master Servicer as Master Servicer under this Indenture Agreement (such termination being herein called a “Service Transfer”"SERVICE TRANSFER"). After receipt by the Master Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a10.2(a), the Trustee shall automatically assume the responsibilities of the Master Servicer hereunder until the date that a Successor Master Servicer shall have been appointed pursuant to Section 12.2 10.2 and all authority and power of the Master Servicer under this Indenture Agreement shall pass to and be vested in the Trustee or such Successor Master Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) Majority Holders is hereby authorized and empowered (upon the failure of the Master Servicer to cooperate) to execute and deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Master Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Master Servicer agrees to cooperate with the Trustee and such Successor Master Servicer in effecting the termination of the responsibilities and rights of the Master Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Master Servicer of all authority of the Master Servicer to service the Pledged Loans provided for under this IndentureAgreement, including without limitation all authority over any Collections which shall on the date of transfer be held by the Master Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Master Servicer with respect to the Pledged Loans, and in assisting the Successor Master Servicer in enforcing all rights under this Indenture Agreement including, without limitation, allowing the Successor Master Servicer’s 's personnel access to the Master Servicer’s 's premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Master Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Master Servicer in such electronic form as the Successor Master Servicer may reasonably request and shall promptly transfer to the Successor Master Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Master Servicer shall reasonably request. The Master Servicer shall allow the Successor Master Servicer access to the Master Servicer’s 's officers and employees. To the extent that compliance with this Section 12.1 10.1 shall require the Master Servicer to disclose to the Successor Master Servicer information of any kind which the Master Servicer reasonably deems to be confidential, the Successor Master Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Master Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Master Servicer. The Master Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Master Servicer with the provisions of this paragraph.
Appears in 1 contract
Samples: Master Indenture and Servicing Agreement (Cendant Corp)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuingoccur:
(ai) any failure by the Servicer Servicer: (x) to make deposit to the Collection Account (A) any payment, transfer or deposit on or before the date such payment, transfer or deposit is amount required to be made or given deposited therein by the Servicer under the terms of this Indenture and (other than any such failure remains unremedied for two Business Days; provided, however, that if resulting from an administrative or technical error of the Servicer is unable to make a paymentin the amount so deposited); or (B) within one (1) Business Day after the Servicer becomes aware that, transfer or deposit when due and such failure is as a result of circumstances beyond an administrative or technical error of the Servicer, any amount previously deposited by the Servicer to the Collection Account was less than the amount required to be deposited therein by the Servicer, the amount of such shortfall; or (y) to deliver to the Trust Collateral Agent the Servicer’s control, Certificate on the grace period shall be extended to five Business Daysrelated Determination Date;
(bii) failure on the part of the Servicer duly to observe or to perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture any Basic Document, or any other Transaction Document to which representation or warranty of the Servicer is a party and such failure continues made in this Agreement, any other Basic Document or in any certificate or other writing delivered pursuant to any Basic Document proving to have been incorrect in any material respect as of the time when the same shall have been made, which default, if capable of cure, shall continue unremedied for a period of 30 days after (or a longer period, not in excess of 60 days, as may be reasonably necessary to remedy such default, if the earlier default is capable of the date on which remedy within 60 days or less and the Servicer delivers an Officer’s Certificate to the Indenture Trustee to the effect that it has actual knowledge of commenced, or will promptly commence and diligently pursue, all reasonable efforts to remedy the failure and the date on which default) after (x) there shall have been given written notice of such failure, requiring the same to be remedied, shall have been given (1) to the Servicer, by the Trust Collateral Agent, or (2) to the Servicer by the TrusteeTrust Collateral Agent at the direction of the Majority Noteholders; or (y) discovery of such failure by an officer of the Servicer; or
(iii) the entry of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, receiver, or to liquidator for the Servicer or any of its subsidiaries in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings, or for the winding up or liquidation of its respective affairs, and the Trustee by the Insurer continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the Holders entry of 25% any decree or more order for relief in respect of the Aggregate Principal Amount Servicer or any of the Notes;its subsidiaries under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, or similar law, whether now or hereafter in effect, which decree or order for relief continues unstayed and in effect for a period of 60 consecutive days; or
(civ) any representation and warranty made the consent by the Servicer in this Indenture shall prove or any of its subsidiaries to have been incorrect the appointment of a conservator or receiver or liquidator in any material respect when made insolvency, readjustment of debt, marshalling of assets and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation liabilities, or warranty within 30 Business Days after the earlier similar proceedings of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(d) an Insolvency Event shall occur with respect relating to the Servicer or any of its subsidiaries or relating to substantially all of its property; or the Performance Guarantoradmission by the Servicer or any of its subsidiaries in writing of its inability to pay its debts generally as they become due, the filing by the Servicer or any of its subsidiaries of a petition to take advantage of any applicable insolvency or reorganization statute, the making by the Servicer or any of its subsidiaries of an assignment for the benefit of its creditors, or the voluntarily suspension by the Servicer or any of its subsidiaries of payment of its obligations;
(v) the Servicer breaches any Financial Covenants; or
(evi) the Servicer shall fail Originator or Servicer, if Credit Acceptance is the Servicer, fails to deliver the reports described pay when due Purchase Amounts in Section 8.1 excess of this Indenture $100,000; then, and such failure shall continue for five Business Days. THEN, so long as such Servicer Default shall be continuingin each and every case, the Control Party Trust Collateral Agent, if so requested by the Majority Noteholders by notice then given in writing to the Servicer, the Swap Counterparty, Backup Servicer and the Issuer, the Trustee, the Insurer and each Rating Agency (a “Termination Notice”)Trust Collateral Agent, may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. Upon sending or receiving any such notice, the Trust Collateral Agent shall promptly send a copy thereof to the Indenture (such termination being herein called a “Service Transfer”)Trustee, the Owner Trustee, the Rating Agencies and to each Noteholder. After Within 30 days after the receipt by the Backup Servicer and the Trustee of such Termination Notice written notice (if such notices relates to terminating the Servicer) and subject to the terms of Section 12.2(a8.02(a)), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall Agreement, whether with respect to the Notes or the Loans or Contracts or otherwise, shall, without further action, pass to and be vested in the Trustee Backup Servicer or such Successor Servicer, successor Servicer as the case may be, without further action on the part of any Person, be appointed under Section 8.02; and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) Backup Servicer is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicerpredecessor servicer, as attorney-in-fact or otherwise, any and all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of servicing rightsthe Loans and the Contracts and related documents, or otherwise. The predecessor Servicer agrees to shall cooperate with the Trustee successor Servicer and such Successor the Backup Servicer in effecting the termination of the responsibilities and rights of the predecessor Servicer to conduct servicing hereunderunder this Agreement, including without limitation the transfer to such Successor the Backup Servicer or the successor Servicer for administration by it of all authority of cash amounts that shall at the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer time be held by the Servicer predecessor servicer for deposit in a Lockbox Account deposit, or which shall thereafter be received by the Servicer with respect to the Pledged Loansa Loan or related Contract, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing related accounts and records maintained by the Successor Servicer’s personnel access . All Transition Expenses shall be paid by the predecessor servicer upon presentation of reasonable documentation of such costs and expenses. If such Transition Expenses are not paid to the successor Servicer by the predecessor Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at , such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer Transition Expenses shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphpaid under Section 5.08(a)(i) hereof.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Credit Acceptance Corp)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any required payment, transfer or deposit or to give instructions or notice to the Indenture Trustee to make such payment, transfer or deposit on or before the date such payment, transfer or deposit or such instruction or notice is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture Agreement, the Indenture, the 2019-1A SUBI Supplement or the 2019-1A SUBI Servicing Agreement, in an aggregate amount exceeding $50,000, and such which failure remains continues unremedied for two a period of five (5) Business Days; providedDays after the earlier of (i) the date on which notice of such failure, howeverrequiring the same to be remedied, that if shall have been given by registered or certified mail to the Servicer is unable by the Issuer or the Indenture Trustee, or to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysIssuer and the Indenture Trustee by the Required Noteholders and (ii) the actual knowledge of the Servicer thereof;
(b) any failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture Agreement, the Indenture, the 2019-1A SUBI Supplement or the 2019-1A SUBI Servicing Agreement or in any other Transaction Document to which certificate delivered by the Servicer is pursuant to this Agreement, the 2019-1A SUBI Supplement, the 2019-1A SUBI Servicing Agreement or the Indenture, which failure has a party material adverse effect on the interests of the Noteholders (as determined by the Threshold Noteholders) and such failure which continues unremedied for a period of 30 forty-five (45) days after the earlier of (i) the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given by registered or certified mail to the Servicer by the Issuer or the Indenture Trustee, or to the Servicer Servicer, the Issuer and the Indenture Trustee by the Insurer or Threshold Noteholders and (ii) the Holders of 25% or more actual knowledge of the Aggregate Principal Amount of the NotesServicer thereof;
(c) any representation and representation, warranty or certification made by the Servicer in this Indenture Agreement, the Indenture, the 2019-1A SUBI Supplement or the 2019-1A SUBI Servicing Agreement or in any certificate delivered by the Servicer pursuant to this Agreement, the Indenture, the 2019-1A SUBI Supplement or the 2019-1A SUBI Servicing Agreement shall prove to have been incorrect in any material respect when made or deemed made and such failure has a material and adverse impact effect on the Trustee’s interest in Noteholders (as determined by the Pledged Loans Threshold Noteholders) and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days which continues unremedied for a period of forty-five (45) days after the earlier of (i) the date on which a notice specifying such incorrect representation or warranty and requiring the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach same to be remedied, shall have been given by registered or certified mail to the Servicer by the Trustee Issuer or the Indenture Trustee, or to the Servicer Servicer, the Issuer, and the Indenture Trustee by the Insurer or Threshold Noteholders and (ii) the Holders of 25% or more actual knowledge of the Aggregate Principal Amount of the Notes;Servicer thereof; or
(d) an Insolvency Event shall occur with respect to the Servicer; then, in the event of any Servicer or the Performance Guarantor; or
(e) the Servicer shall fail to deliver the reports described in Section 8.1 of this Indenture and such failure shall continue for five Business Days. THENDefault, so long as such a Servicer Default shall be is continuing, the Control Party Indenture Trustee may (and upon the written direction of the Required Noteholders shall), by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, North Carolina Trust and the Insurer and each Rating Agency Back-up Servicer (a “Termination Notice”), may ) (i) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement, the 2019-1A SUBI Supplement, the 2019-1A SUBI Servicing Agreement and the Indenture and (ii) direct the applicable party to terminate any power of attorney granted to the Servicer or any Subservicer and direct such termination being herein called party to execute a “Service Transfer”)new power of attorney to the Indenture Trustee or its designee. The existence of a Servicer Default may be waived with the consent of the Required Noteholders. After receipt by the Servicer of a Termination Notice, and effective on the Trustee of such Termination Notice and subject to the terms of Section 12.2(a)Servicing Transfer Date, the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in the Successor Servicer (a “Servicing Transfer”) appointed by the Indenture Trustee (at the written direction of the Required Noteholders if the Successor Servicer is not the Back-up Servicer or such Successor Servicer, as the case may be, without further action on the part of any Person, Indenture Trustee) pursuant to Section 8.02; and, without limitation, the Indenture Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperatecooperate promptly) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsServicing Transfer. The Servicer agrees to reasonably cooperate and to cause each Subservicer to reasonably cooperate (and each Subservicer agrees to cooperate) with the Indenture Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder and (ii) transferring all duties and obligations of the Servicer hereunder to such Successor Servicer, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service and administer the Pledged Loans provided for under this IndentureAgreement, including without limitation all authority over any all Collections which shall on the date of transfer be held by the Servicer for deposit deposit, or which have been deposited by the Servicer, in a Lockbox the Collection Account or other applicable Note Account, or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer to the Successor Servicer all its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer Loans, together with all other records, correspondence and documents necessary for the continued servicing and administration of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Notwithstanding the foregoing, the Servicer shall allow be allowed to retain a copy of all records, correspondence and documents provided to the Successor Servicer access to in compliance with the Servicer’s officers and employeesrecordkeeping policies or Requirements of Law. The predecessor Servicer shall be responsible for all expenses incurred in transferring the servicing duties to the Successor Servicer. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidentialconfidential or give the Successor Servicer access to software or other intellectual property, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphinterests.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Regional Management Corp.)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any required payment, transfer or deposit or to give instructions or notice to the Indenture Trustee to make such payment, transfer or deposit on or before the date such payment, transfer or deposit or such instruction or notice is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture Agreement, the Indenture, the 2018-1A SUBI Supplement or the 2018-1A SUBI Servicing Agreement, in an aggregate amount exceeding $50,000, and such which failure remains continues unremedied for two a period of five (5) Business Days; providedDays after the earlier of (i) the date on which notice of such failure, howeverrequiring the same to be remedied, that if shall have been given by registered or certified mail to the Servicer is unable by the Issuer or the Indenture Trustee, or to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysIssuer and the Indenture Trustee by the Required Noteholders and (ii) the actual knowledge of the Servicer thereof;
(b) any failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture Agreement, the Indenture, the 2018-1A SUBI Supplement or the 2018-1A SUBI Servicing Agreement or in any other Transaction Document to which certificate delivered by the Servicer is pursuant to this Agreement, the 2018-1A SUBI Supplement, the 2018-1A SUBI Servicing Agreement or the Indenture, which failure has a party material adverse effect on the interests of the Noteholders (as determined by the Threshold Noteholders) and such failure which continues unremedied for a period of 30 forty-five (45) days after the earlier of (i) the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given by registered or certified mail to the Servicer by the Issuer or the Indenture Trustee, or to the Servicer Servicer, the Issuer and the Indenture Trustee by the Insurer or Threshold Noteholders and (ii) the Holders of 25% or more actual knowledge of the Aggregate Principal Amount of the NotesServicer thereof;
(c) any representation and representation, warranty or certification made by the Servicer in this Indenture Agreement, the Indenture, the 2018-1A SUBI Supplement or the 2018-1A SUBI Servicing Agreement or in any certificate delivered by the Servicer pursuant to this Agreement, the Indenture, the 2018-1A SUBI Supplement or the 2018-1A SUBI Servicing Agreement shall prove to have been incorrect in any material respect when made or deemed made and such failure has a material and adverse impact effect on the Trustee’s interest in Noteholders (as determined by the Pledged Loans Threshold Noteholders) and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days which continues unremedied for a period of forty-five (45) days after the earlier of (i) the date on which a notice specifying such incorrect representation or warranty and requiring the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach same to be remedied, shall have been given by registered or certified mail to the Servicer by the Trustee Issuer or the Indenture Trustee, or to the Servicer Servicer, the Issuer, and the Indenture Trustee by the Insurer or Threshold Noteholders and (ii) the Holders of 25% or more actual knowledge of the Aggregate Principal Amount of the Notes;Servicer thereof; or
(d) an Insolvency Event shall occur with respect to the Servicer; then, in the event of any Servicer or the Performance Guarantor; or
(e) the Servicer shall fail to deliver the reports described in Section 8.1 of this Indenture and such failure shall continue for five Business Days. THENDefault, so long as such a Servicer Default shall be is continuing, the Control Party Indenture Trustee may (and upon the written direction of the Required Noteholders shall), by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, North Carolina Trust and the Insurer and each Rating Agency Back-up Servicer (a “Termination Notice”), may ) (i) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement, the 2018-1A SUBI Supplement, the 2018-1A SUBI Servicing Agreement and the Indenture and (ii) direct the applicable party to terminate any power of attorney granted to the Servicer or any Subservicer and direct such termination being herein called party to execute a “Service Transfer”)new power of attorney to the Indenture Trustee or its designee. The existence of a Servicer Default may be waived with the consent of the Required Noteholders. After receipt by the Servicer of a Termination Notice, and effective on the Trustee of such Termination Notice and subject to the terms of Section 12.2(a)Servicing Transfer Date, the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in the Successor Servicer (a “Servicing Transfer”) appointed by the Indenture Trustee (at the written direction of the Required Noteholders if the Successor Servicer is not the Back-up Servicer or such Successor Servicer, as the case may be, without further action on the part of any Person, Indenture Trustee) pursuant to Section 8.02; and, without limitation, the Indenture Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperatecooperate promptly) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsServicing Transfer. The Servicer agrees to reasonably cooperate and to cause each Subservicer to reasonably cooperate (and each Subservicer agrees to cooperate) with the Indenture Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder and (ii) transferring all duties and obligations of the Servicer hereunder to such Successor Servicer, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service and administer the Pledged Loans provided for under this IndentureAgreement, including without limitation all authority over any all Collections which shall on the date of transfer be held by the Servicer for deposit deposit, or which have been deposited by the Servicer, in a Lockbox the Collection Account or other applicable Note Account, or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer to the Successor Servicer all its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer Loans, together with all other records, correspondence and documents necessary for the continued servicing and administration of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Notwithstanding the foregoing, the Servicer shall allow be allowed to retain a copy of all records, correspondence and documents provided to the Successor Servicer access to in compliance with the Servicer’s officers and employeesrecordkeeping policies or Requirements of Law. The predecessor Servicer shall be responsible for all expenses incurred in transferring the servicing duties to the Successor Servicer. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidentialconfidential or give the Successor Servicer access to software or other intellectual property, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphinterests.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Regional Management Corp.)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any required payment, transfer or deposit or to give instructions or notice to the Indenture Trustee to make or cause to be made such payment, transfer or deposit on or before the date such payment, transfer or deposit or such instruction or notice is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture Agreement, the Indenture, the 2024-2A SUBI Supplement, or the 2024-2A SUBI Servicing Agreement, in an aggregate amount exceeding $50,000, and such which failure remains continues unremedied for two a period of five (5) Business Days; providedDays after the earlier of (i) the date on which notice of such failure, howeverrequiring the same to be remedied, that if shall have been given by registered or certified mail to the Servicer is unable by the Issuer or the Indenture Trustee, or to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysIssuer and the Indenture Trustee by the Required Noteholders and (ii) the actual knowledge of the Servicer thereof;
(b) any failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture Agreement, the Indenture, the 2024-2A SUBI Supplement or the 2024-2A SUBI Servicing Agreement or in any other Transaction Document to which certificate delivered by the Servicer is pursuant to this Agreement, the 2024-2A SUBI Supplement, the 2024-2A SUBI Servicing Agreement or the Indenture, which failure has a party material adverse effect on the interests of the Noteholders (as determined by the Threshold Noteholders) and such failure which continues unremedied for a period of 30 forty-five (45) days after the earlier of (i) the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given by registered or certified mail to the Servicer by the Issuer or the Indenture Trustee, or to the Servicer Servicer, the Issuer and the Indenture Trustee by the Insurer or Threshold Noteholders and (ii) the Holders of 25% or more actual knowledge of the Aggregate Principal Amount of the NotesServicer thereof;
(c) any representation and representation, warranty or certification made by the Servicer in this Indenture Agreement, the Indenture, the 2024-2A SUBI Supplement or the 2024-2A SUBI Servicing Agreement or in any certificate delivered by the Servicer pursuant to this Agreement, the Indenture, the 2024-2A SUBI Supplement or the 2024-2A SUBI Servicing Agreement shall prove to have been incorrect in any material respect when made or deemed made and such failure has a material and adverse impact effect on the Trustee’s interest in Noteholders (as determined by the Pledged Loans Threshold Noteholders) and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days which continues unremedied for a period of forty-five (45) days after the earlier of (i) the date on which a notice specifying such incorrect representation or warranty and requiring the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach same to be remedied, shall have been given by registered or certified mail to the Servicer by the Trustee Issuer or the Indenture Trustee, or to the Servicer Servicer, the Issuer, and the Indenture Trustee by the Insurer or Threshold Noteholders and (ii) the Holders of 25% or more actual knowledge of the Aggregate Principal Amount of the Notes;Servicer thereof; or
(d) an Insolvency Event shall occur with respect to the Servicer; then, in the event of any Servicer or the Performance Guarantor; or
(e) the Servicer shall fail to deliver the reports described in Section 8.1 of this Indenture and such failure shall continue for five Business Days. THENDefault, so long as such a Servicer Default shall be is continuing, the Control Party Indenture Trustee may (and upon the written direction of the Required Noteholders shall), by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, North Carolina Trust and the Insurer and each Rating Agency Back-up Servicer (a “Termination Notice”), may ) (i) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement, the 2024-2A SUBI Supplement, the 2024-2A SUBI Servicing Agreement and the Indenture and (ii) direct the applicable party to terminate any power of attorney granted to the Servicer or any Subservicer and direct such termination being herein called party to execute a “Service Transfer”)new power of attorney to the Indenture Trustee or its designee. The existence of a Servicer Default may be waived with the consent of the Required Noteholders. Notwithstanding the foregoing, a delay in or failure of performance referred to under paragraph (a) above for an additional period of five (5) Business Days after the applicable grace period or referred to under paragraph (b) or (c) above for a period of forty-five (45) days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by a Force Majeure Event. If, following the expiration of such incremental forty-five (45) day grace period in the case of a delay or failure of performance described in paragraph (b) or (c) above, the applicable delay or failure of performance remains outstanding but the Servicer continues to work diligently to remedy such delay or failure of performance, then the grace period shall be extended for a further thirty (30) days upon notice from the Servicer to the Indenture Trustee. The preceding sentences will not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Issuer and the Depositor with an Officer’s Certificate giving prompt notice of such failure or delay, together with a description of its efforts so to perform its obligations. After receipt by the Servicer of a Termination Notice, and effective on the Trustee of such Termination Notice and subject to the terms of Section 12.2(a)Servicing Transfer Date, the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in the Successor Servicer (a “Servicing Transfer”) appointed by the Indenture Trustee (at the written direction of the Required Noteholders if the Successor Servicer is not the Back-up Servicer or such Successor Servicer, as the case may be, without further action on the part of any Person, Indenture Trustee) pursuant to Section 8.02; and, without limitation, the Indenture Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperatecooperate promptly) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsServicing Transfer. The Servicer agrees to reasonably cooperate and to cause each Subservicer to reasonably cooperate (and each Subservicer agrees to cooperate) with the Indenture Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder and (ii) transferring all duties and obligations of the Servicer hereunder to such Successor Servicer, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service and administer the Pledged Loans provided for under this IndentureAgreement, including without limitation all authority over any all Collections which shall on the date of transfer be held by the Servicer for deposit deposit, or which have been deposited by the Servicer, in a Lockbox the Collection Account or other applicable Note Account, or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer to the Successor Servicer all its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer Loans, together with all other records, correspondence and documents necessary for the continued servicing and administration of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Notwithstanding the foregoing, the Servicer shall allow be allowed to retain a copy of all records, correspondence and documents provided to the Successor Servicer access to in compliance with the Servicer’s officers and employeesrecordkeeping policies or Requirements of Law. The predecessor Servicer shall be responsible for all expenses incurred in transferring the servicing duties to the Successor Servicer. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidentialconfidential or give the Successor Servicer access to software or other intellectual property, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphinterests.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Regional Management Corp.)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (including without limitation with respect to Collections) as required by this Agreement on or before the date such payment, transfer or deposit is required to be made or given made;
(b) any failure by the Servicer to give instructions or notice to the Administrative Agent as required by this Agreement, or to deliver any required Monthly Report or other Required Reports hereunder on or before the date occurring two Business Days after the date such instruction, notice or report is required to be made or given, as the case may be, under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysAgreement;
(bc) any failure on the part of the Servicer (A) duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any the other Transaction Document Documents to which the Servicer is a party and such failure the same continues unremedied for a period of 30 10 days after the earlier to occur of the date on which the Servicer has actual knowledge of the failure and (i) the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the TrusteeAdministrative Agent and (ii) the date on which the Servicer becomes aware thereof, or (B) duly to the Servicer and the Trustee by the Insurer observe or the Holders of 25% or more of the Aggregate Principal Amount of the Notesperform its obligations under Section 6.4(j);
(cd) any representation and representation, warranty or certification made by the Servicer in this Indenture any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect in any material respect when made made, and has a material and which (if capable of being cured without any adverse impact on the Trustee’s interest in Purchasers or the Pledged Loans and other Pledged Assets and collectibility of the Servicer is not in compliance with such representation or warranty within 30 Business Days Assets) continues to be unremedied for a period of 10 days after the earlier to occur of the date on which the Servicer has actual knowledge of such breach and (i) the date on which written notice of such breach incorrectness requiring that such breach the same to be remedied, remedied shall have been given to the Servicer by the Trustee or to Administrative Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(de) an Insolvency Event shall occur with respect to the Servicer;
(f) any material delegation of the Servicer’s duties that is not permitted by Section 6.1;
(g) any financial or other information reasonably requested by the Administrative Agent or any Purchaser is not provided as requested within a reasonable amount of time following such request;
(h) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of $10,000,000, individually or in the aggregate, and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than 60 consecutive days without a stay of execution;
(i) the failure of the Servicer to make any payment due with respect to any recourse debt or other obligations, which debt or other obligations are in excess of $10,000,000, individually or in the aggregate, or the Performance Guarantoroccurrence of any event or condition that would at such time permit acceleration of such recourse debt or other obligations;
(j) CapitalSource Inc.’s Consolidated Tangible Net Worth at any time is less than the TNW Test Level;
(k) a payment default or other default, termination event or other similar event has occurred and is continuing (beyond any applicable grace period) under any Citibank Facility or under or with respect to any repurchase agreement, securitization or any other facility providing indebtedness for borrowed money, in each case, in an amount greater than $10,000,000 to or for the benefit of CapitalSource Inc. or any of its Subsidiaries (except for those securitizations or other facilities listed on Schedule VII, as the same may be updated from time to time as mutually agreed by the Seller and the Administrative Agent), and at such time such event permits the lender or holder of rights thereunder to terminate commitments, accelerate the obligations owing thereunder or otherwise exercise remedies thereunder; provided that a Servicer Default arising as a result of a default, termination event, margin call or other similar event with respect to a repurchase agreement or series of repurchase agreements shall be deemed to be cured with the effect of being considered not to have occurred to the extent that either (i) the surrender of the related collateral in whole to (or liquidation of the related collateral in whole by) the repo counterparty under such repurchase agreement (by itself or together with any payments made, or additional collateral provided to, the repo counterparty) constitutes satisfaction in full of the obligations of CapitalSource Inc. and its Subsidiaries thereunder, or (ii) the deficiency amount under such repurchase agreement or series of repurchase agreements after application of collateral proceeds with respect to the sale or liquidation of the related collateral is less than $10,000,000;
(l) the Servicer fails in any material respect to comply with the Credit and Collection Policy regarding the servicing of the Collateral; or
(em) the Servicer shall fail consents or agrees to, or otherwise permits to deliver occur, any amendment, modification, change, supplement or rescission of or to the reports described Credit and Collection Policy (after the adoption of same) in Section 8.1 whole or in part that could be reasonably expected to have a Material Adverse Effect upon the Collateral, the Administrative Agent or the Secured Parties, without the prior written consent of this Indenture and such failure shall continue for five Business Daysthe Administrative Agent. THENthen notwithstanding anything herein to the contrary, so long as any such Servicer Default shall be continuingnot have been remedied within any applicable cure period prior to the date of the Servicer Termination Notice (defined below), the Control Party Administrative Agent, by written notice then given in writing to the Servicer (with a copy to the Backup Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency ) (a “Servicer Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphAgreement.
Appears in 1 contract
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made or given by the Servicer under the terms of this Indenture Agreement and such failure remains unremedied for two three Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business Days;
(b) failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any other Transaction Document to which the Servicer is a party and such failure continues unremedied for a period of 30 days after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(c) any representation and warranty made by the Servicer in this Indenture Agreement shall prove to have been incorrect in any material respect when made and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days after the earlier of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(d) an Insolvency Event shall occur with respect to the Servicer or the Performance GuarantorCendant; or
(e) the Servicer shall fail to deliver the reports described in Section Sections 8.1 and 8.2 of this Indenture Agreement and such failure shall continue for five Business Days. THEN, so long as such Servicer Default shall be continuing, either the Control Party Trustee, or the Majority Holders of all Notes by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer Issuer and each Rating Agency (and to the Trustee if given by the Majority Holders) (a “Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture Agreement (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) Majority Holders is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this IndentureAgreement, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture Agreement including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraph.
Appears in 1 contract
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (including without limitation with respect to Collections) as required by this Agreement on or before the date such payment, transfer or deposit is required to be made or given made;
(b) any failure by the Servicer to give instructions or notice to the Administrative Agent as required by this Agreement, or to deliver any required Monthly Report or other Required Reports hereunder on or before the date occurring two Business Days after the date such instruction, notice or report is required to be made or given, as the case may be, under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysAgreement;
(bc) any failure on the part of the Servicer (A) duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any the other Transaction Document Documents to which the Servicer is a party and such failure the same continues unremedied for a period of 30 10 days after the earlier to occur of the date on which the Servicer has actual knowledge of the failure and (i) the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the TrusteeAdministrative Agent and (ii) the date on which the Servicer becomes aware thereof, or (B) duly to the Servicer and the Trustee by the Insurer observe or the Holders of 25% or more of the Aggregate Principal Amount of the Notesperform its obligations under Section 6.4(j);
(cd) any representation and representation, warranty or certification made by the Servicer in this Indenture any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect in any material respect when made made, and has a material and which (if capable of being cured without any adverse impact on the Trustee’s interest in Purchasers or the Pledged Loans and other Pledged Assets and collectibility of the Servicer is not in compliance with such representation or warranty within 30 Business Days Assets) continues to be unremedied for a period of 10 days after the earlier to occur of the date on which the Servicer has actual knowledge of such breach and (i) the date on which written notice of such breach incorrectness requiring that such breach the same to be remedied, remedied shall have been given to the Servicer by the Trustee or to Administrative Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(de) an Insolvency Event shall occur with respect to the Servicer;
(f) any material delegation of the Servicer’s duties that is not permitted by Section 6.1;
(g) any financial or other information reasonably requested by the Administrative Agent or any Purchaser is not provided as requested within a reasonable amount of time following such request;
(h) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of $10,000,000, individually or in the aggregate, and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than 60 consecutive days without a stay of execution;
(i) the failure of the Servicer to make any payment due with respect to any recourse debt or other obligations, which debt or other obligations are in excess of $10,000,000, individually or in the aggregate, or the Performance Guarantoroccurrence of any event or condition that would at such time permit acceleration of such recourse debt or other obligations;
(j) CapitalSource Inc.’s Consolidated Tangible Net Worth at any time is less than the TNW Test Level;
(k) a payment default or other default, termination event or other similar event has occurred and is continuing (beyond any applicable grace period) under any Citibank Facility or under or with respect to any repurchase agreement, securitization or any other facility providing indebtedness for borrowed money, in each case, in an amount greater than $10,000,000 to or for the benefit of CapitalSource Inc. or any of its Subsidiaries (except for those securitizations or other facilities listed on Schedule VII, as the same may be updated from time to time as mutually agreed by the Seller and the Administrative Agent), and at such time such event permits the lender or holder of rights thereunder to terminate commitments, accelerate the obligations owing thereunder or otherwise exercise remedies thereunder; provided that a Servicer Default arising as a result of a default, termination event, margin call or other similar event with respect to a repurchase agreement or series of repurchase agreements shall be deemed to be cured with the effect of being considered not to have occurred, to the extent that either (i) the surrender of the related collateral in whole to (or liquidation of the related collateral in whole by) the repo counterparty under such repurchase agreement (by itself or together with any payments made, or additional collateral provided to, the repo counterparty) constitutes satisfaction in full of the obligations of CapitalSource Inc. and its Subsidiaries thereunder, or (ii) the deficiency amount under such repurchase agreement or series of repurchase agreements after application of collateral proceeds with respect to the sale or liquidation of the related collateral is less than $10,000,000;
(l) the Servicer fails in any material respect to comply with the Credit and Collection Policy regarding the servicing of the Collateral; or
(em) the Servicer shall fail consents or agrees to, or otherwise permits to deliver occur, any amendment, modification, change, supplement or rescission of or to the reports described Credit and Collection Policy (after the adoption of same) in Section 8.1 whole or in part that could be reasonably expected to have a Material Adverse Effect upon the Collateral, the Administrative Agent or the Secured Parties, without the prior written consent of this Indenture and such failure shall continue for five Business Daysthe Administrative Agent. THENthen notwithstanding anything herein to the contrary, so long as any such Servicer Default shall be continuingnot have been remedied within any applicable cure period prior to the date of the Servicer Termination Notice (defined below), the Control Party Administrative Agent, by written notice then given in writing to the Servicer (with a copy to the Backup Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency ) (a “Servicer Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphAgreement.
Appears in 1 contract
Servicer Defaults. If any one of the following events (each, a “"Servicer Default”") shall occur and be continuingcontinuing with respect to the Servicer:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee to make such payment, transfer or deposit or to give notice to the Trustee as to any action to be taken under any Enhancement Agreement on or before the date such payment, transfer or deposit or such instruction or notice is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture and Agreement, which failure is not cured within five Business Days after notice of such failure remains unremedied for two Business Days; provided, however, that if from the Servicer is unable Trustee to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business Days;
(b) failure on the part of the Servicer duly to observe or perform its covenant not to create any other Lien on any Receivable which failure has a material adverse effect on the Certificateholders and which continues unremedied for a period of sixty (60) days after written notice to it of such failure; provided, however, that a "Servicer Default" shall not be deemed to have occurred if the Seller or the Servicer shall have repurchased the related Receivables or, if applicable, all of the Receivables during such period in accordance with the provisions of this Agreement;
(c) failure on the part of the Servicer duly to observe or perform any covenants or agreements of the Servicer set forth in this Indenture Agreement (other than with respect to those specified in clause (a) or any other Transaction Document (b) above and with respect to clauses (viii), (ix) and (x) under Section 3.3(a) hereof, to the extent the terms of Section 3.3(c) hereof have been complied with) which failure has a material adverse effect on the Servicer is a party Certificateholders and such failure which continues unremedied for a period of 30 thirty (30) days after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(cd) any representation and representation, warranty or certification made by the Servicer in this Indenture Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect in any material respect when made and made, which has a material and adverse impact effect on the Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days after the earlier rights of the date on Investor Certificateholders of any Series and which the Servicer has actual knowledge material adverse effect continues for a period of such breach and 60 days after the date on which written notice of such breach thereof, requiring that such breach the same to be remedied, shall have been given to the Servicer by the Trustee Trustee; provided, however, that a "Servicer Default" shall not be deemed to have occurred if the Seller or to the Servicer and shall have repurchased the Trustee by related Receivables or, if applicable, all of such Receivables during such period in accordance with the Insurer or the Holders provisions of 25% or more of the Aggregate Principal Amount of the Notesthis Agreement;
(d) an Insolvency Event shall occur with respect to the Servicer or the Performance Guarantor; or
(e) the Servicer shall fail consent to deliver the reports described appointment of a conservator or receiver or liquidator or other similar official in Section 8.1 any bankruptcy, insolvency, readjustment of this Indenture debt, marshalling of assets and liabilities or similar proceedings of or relating to 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 or receiver or liquidator or other similar official in any insolvency, 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 the Servicer and such failure decree or order shall continue have remained in force undischarged or unstayed for five Business Days. THENa period of sixty days; or the 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 bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as such the Servicer Default shall be continuingnot have been remedied, the Control Party Trustee, by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency Servicer (a “"Termination Notice”"), may terminate all but not less than all of the rights and obligations (other than its obligations that have accrued up to the time of such termination) of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”)Agreement and in and to the Receivables and the proceeds thereof. After receipt by the Servicer of a Termination Notice, and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 12.2 and 10.2, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in the Trustee or such a Successor Servicer, as the case may be, without further action on the part of any Person, Servicer (a "Service Transfer") and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer; provided that in no event shall the Servicer incur any liability for any such action by the Trustee. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans Receivables provided for under this IndentureAgreement, including without limitation all authority over any all Collections which shall on the date of transfer be held by the Servicer for deposit deposit, or which have been deposited by the Servicer, in a Lockbox Account the Collection Account, or which shall thereafter be received by the Servicer with respect to the Pledged LoansReceivables, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans Receivables in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest interest. Notwithstanding the foregoing, a delay in or failure of performance under Section 10.1(a) for a period of 10 Business Days or under Section 10.1(b), (c) or (d) for a period of 60 Business Days, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and as such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall be satisfactory not relieve the Servicer from using its best efforts to perform its obligations in form a timely manner in accordance with the terms of this Agreement, and substance the Servicer shall provide the Trustee, any Agents, any Enhancement Providers, the Seller and the Certificateholders with an Officers' Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to the Successor Servicerperform its obligations. The Servicer hereby consents to shall immediately notify the entry against it Trustee in writing of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphDefault.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Distribution Financial Services Floorplan Master Trust)
Servicer Defaults. If The happening of any one or more of the following events (each, shall constitute a “Servicer Default”) shall occur and be continuingDefault hereunder:
(a) any Any failure by the Servicer to make any payment, deposit, advance or transfer or deposit on or before the date such payment, transfer or deposit is of funds required to be made paid, deposited, advanced or given by the Servicer transferred under the terms of this Indenture Agreement, and such failure remains continues unremedied for two five Business Days; provided, however, that if the Days after discovery by Servicer is unable to make a payment, transfer or deposit when due and of such failure is as a result or receipt by Servicer of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business Daysnotice of such failure;
(b) failure Failure on the part of the Servicer duly to observe or perform in any other material respect any of the covenants or agreements contained in this Agreement or the Supervisory Servicing Agreement which continues unremedied for 30 days after the giving of written notice of such failure or breach as the case may be, to the Servicer; provided, however, if such failure shall be of a nature that it cannot be cured within 30 days, such failure shall not constitute a Servicer Default hereunder if within such 30-day period the Servicer gives notice to the Trustee and the Supervisory Servicer of the corrective action it proposes to take, which EXHIBIT 10.12 SERVICING AGREEMENT - PAGE 25 OF 33 26 corrective action is agreed in writing by the Trustee to be satisfactory and the Servicer shall thereafter pursue such corrective action diligently until such default is cured;
(c) 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 insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 90 days;
(d) The Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property;
(e) The 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 payments of its obligations;
(f) The Servicer shall cease to be an Eligible Servicer;
(g) A material adverse change occurs in the financial condition of the Servicer, which change materially impairs the ability of the Servicer set forth to perform its obligations under this Agreement; or
(h) Any representation or warranty made by the Servicer in this Indenture or any other Transaction Document proves to have been incorrect in any material respect when made, which has a material adverse effect on the Servicer is Noteholders and which continues to have a party and such failure continues unremedied material adverse effect or be incorrect in any material respect for a period of 30 days after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failureinaccuracy, requiring the same it to be remedied, shall have has been given to the Servicer by the Trustee, the Supervisory Servicer or any Noteholder; provided, however, if such inaccuracy is of a nature that it cannot be remedied within such 30-day period the Servicer gives notices to the Servicer Trustee and the Trustee Supervisory Servicer of the corrective action it proposes to take, which corrective action is agreed in writing by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(c) any representation and warranty made by the Servicer in this Indenture shall prove Trustee to have been incorrect in any material respect when made and has a material and adverse impact on the Trustee’s interest in the Pledged Loans and other Pledged Assets be satisfactory and the Servicer shall thereafter pursue such corrective action diligently until such default is not cured but in compliance with such representation or warranty within 30 Business Days after the earlier of the date on which the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach be remedied, shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notes;
(d) an Insolvency Event shall occur with respect to the Servicer or the Performance Guarantor; or
(e) the Servicer shall fail to deliver the reports described in Section 8.1 of this Indenture and such failure shall continue for five Business Days. THEN, so long as such Servicer Default shall be continuing, the Control Party by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency (a “Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on no event longer than 90 days from the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphnotice.
Appears in 1 contract
Servicer Defaults. If any one of the following events (each, a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Deal Agent as required by this Agreement including, without limitation, while Fidelity is Servicer, any payment required to be made under the Backup Servicer and Collateral Custodian Fee Letter, or to deliver any required Monthly Report or other Required Reports hereunder on or before the date occurring two Business Days after the date such payment, transfer transfer, deposit, instruction of notice or deposit report is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysAgreement;
(b) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any other Transaction Document to the Purchase Agreement which has a material adverse effect on the Servicer is a party and such failure Secured Parties, which continues unremedied for a period of 30 days after the earlier first to occur of the date on which the Servicer has actual knowledge of the failure and (i) the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Trustee, or to Deal Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(c) any representation and representation, warranty or certification made by the Servicer in this Indenture Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect in any material respect when made and made, which has a material and adverse impact effect on the Trustee’s interest in the Pledged Loans Secured Parties and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within which continues to be unremedied for a period of 30 Business Days days after the earlier first to occur of the date on which the Servicer has actual knowledge of such breach and (i) the date on which written notice of such breach incorrectness requiring that such breach the same to be remedied, remedied shall have been given to the Servicer by the Trustee or to Deal Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(d) an Insolvency Event shall occur with respect to the Servicer Servicer;
(e) any material delegation of the Servicer's duties which is not permitted by Section 6.28;
(f) any financial or Asset information reasonably requested by the Deal Agent or the Performance GuarantorLender as provided herein is not reasonably provided as requested;
(g) the rendering against the Servicer of a final judgment, decree or order for the payment of money in excess of U.S. $100,000 and the continuance of such judgment, decree or order unsatisfied and in effect for any period of 61 consecutive days without a stay of execution;
(h) the failure of the Servicer to make any payment due with respect to aggregate recourse debt or other obligations with an aggregate principal amount exceeding U.S. $1,000,000 or the occurrence of any event or condition which would permit acceleration of such recourse debt or other obligations if such event or condition has not been waived;
(i) any change in the management of the Servicer relating to the positions of President, CEO, Chairman of the Board and Executive Vice President;
(j) any change in the control of the Servicer which takes the form of either a merger or consolidation in which the Servicer is not the surviving entity; or
(ek) the failure of the Servicer shall fail to deliver make such operational changes at the reports described Originator as itemized for the Lender in Section 8.1 due diligence within a reasonable period of this Indenture time, including (i) separation of the Vendor Service Manager role into a credit role and such failure shall continue for five Business Daysa marketing role, (ii) implementation of more rigorous asset value testing procedures in the underwriting and collections process, (iii) modification and/or replacement of the Originator's collections and charge-off policies with those of the Borrower and Servicer, and (iv) implementation of a treasury/compliance function which will ensure accurate and timely internal and external reporting. THENNotwithstanding anything herein to the contrary, so long as any such Servicer Default shall be continuingnot have been remedied, the Control Party Deal Agent, by written notice then given in writing to the Servicer (with a copy to the Backup Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency ) (a “"Termination Notice”"), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphAgreement.
Appears in 1 contract
Samples: Receivables Credit Agreement (Fidelity Leasing Inc)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any required payment, transfer or deposit or to give instructions or notice to the Indenture Trustee to make such payment, transfer or deposit on or before the date such payment, transfer or deposit or such instruction or notice is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture Agreement, the Indenture, the 2020-1A SUBI Supplement or the 2020-1A SUBI Servicing Agreement, in an aggregate amount exceeding $50,000, and such which failure remains continues unremedied for two a period of five (5) Business Days; providedDays after the earlier of (i) the date on which notice of such failure, howeverrequiring the same to be remedied, that if shall have been given by registered or certified mail to the Servicer is unable by the Issuer or the Indenture Trustee, or to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysIssuer and the Indenture Trustee by the Required Noteholders and (ii) the actual knowledge of the Servicer thereof;
(b) any failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture Agreement, the Indenture, the 2020-1A SUBI Supplement or the 2020-1A SUBI Servicing Agreement or in any other Transaction Document to which certificate delivered by the Servicer is pursuant to this Agreement, the 2020-1A SUBI Supplement, the 2020-1A SUBI Servicing Agreement or the Indenture, which failure has a party material adverse effect on the interests of the Noteholders (as determined by the Threshold Noteholders) and such failure which continues unremedied for a period of 30 forty-five (45) days after the earlier of (i) the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given by registered or certified mail to the Servicer by the Issuer or the Indenture Trustee, or to the Servicer Servicer, the Issuer and the Indenture Trustee by the Insurer or Threshold Noteholders and (ii) the Holders of 25% or more actual knowledge of the Aggregate Principal Amount of the NotesServicer thereof;
(c) any representation and representation, warranty or certification made by the Servicer in this Indenture Agreement, the Indenture, the 2020-1A SUBI Supplement or the 2020-1A SUBI Servicing Agreement or in any certificate delivered by the Servicer pursuant to this Agreement, the Indenture, the 2020-1A SUBI Supplement or the 2020-1A SUBI Servicing Agreement shall prove to have been incorrect in any material respect when made or deemed made and such failure has a material and adverse impact effect on the Trustee’s interest in Noteholders (as determined by the Pledged Loans Threshold Noteholders) and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days which continues unremedied for a period of forty-five (45) days after the earlier of (i) the date on which a notice specifying such incorrect representation or warranty and requiring the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach same to be remedied, shall have been given by registered or certified mail to the Servicer by the Trustee Issuer or the Indenture Trustee, or to the Servicer Servicer, the Issuer, and the Indenture Trustee by the Insurer or Threshold Noteholders and (ii) the Holders of 25% or more actual knowledge of the Aggregate Principal Amount of the Notes;Servicer thereof; or
(d) an Insolvency Event shall occur with respect to the Servicer; then, in the event of any Servicer or the Performance Guarantor; or
(e) the Servicer shall fail to deliver the reports described in Section 8.1 of this Indenture and such failure shall continue for five Business Days. THENDefault, so long as such a Servicer Default shall be is continuing, the Control Party Indenture Trustee may (and upon the written direction of the Required Noteholders shall), by notice then given in writing to the Servicer, the Swap Counterparty, the Issuer, the Trustee, North Carolina Trust and the Insurer and each Rating Agency Back-up Servicer (a “Termination Notice”), may ) (i) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement, the 2020-1A SUBI Supplement, the 2020-1A SUBI Servicing Agreement and the Indenture and (ii) direct the applicable party to terminate any power of attorney granted to the Servicer or any Subservicer and direct such termination being herein called party to execute a “Service Transfer”)new power of attorney to the Indenture Trustee or its designee. The existence of a Servicer Default may be waived with the consent of the Required Noteholders. Notwithstanding the foregoing, a delay in or failure of performance referred to under paragraph (a) above for an additional period of five (5) Business Days after the applicable grace period or referred to under paragraph (b) or (c) above for a period of forty-five (45) days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by a Force Majeure Event. If, following the expiration of such incremental forty-five (45) day grace period in the case of a delay or failure of performance described in paragraph (b) or (c) above, the applicable delay or failure of performance remains outstanding but the Servicer continues to work diligently to remedy such delay or failure of performance, then the grace period shall be extended for a further thirty (30) days upon notice from the Servicer to the Indenture Trustee. The preceding sentences will not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Issuer and the Depositor with an Officer’s Certificate giving prompt notice of such failure or delay, together with a description of its efforts so to perform its obligations. After receipt by the Servicer of a Termination Notice, and effective on the Trustee of such Termination Notice and subject to the terms of Section 12.2(a)Servicing Transfer Date, the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in the Successor Servicer (a “Servicing Transfer”) appointed by the Indenture Trustee (at the written direction of the Required Noteholders if the Successor Servicer is not the Back-up Servicer or such Successor Servicer, as the case may be, without further action on the part of any Person, Indenture Trustee) pursuant to Section 8.02; and, without limitation, the Indenture Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperatecooperate promptly) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsServicing Transfer. The Servicer agrees to reasonably cooperate and to cause each Subservicer to reasonably cooperate (and each Subservicer agrees to cooperate) with the Indenture Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder and (ii) transferring all duties and obligations of the Servicer hereunder to such Successor Servicer, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service and administer the Pledged Loans provided for under this IndentureAgreement, including without limitation all authority over any all Collections which shall on the date of transfer be held by the Servicer for deposit deposit, or which have been deposited by the Servicer, in a Lockbox the Collection Account or other applicable Note Account, or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer to the Successor Servicer all its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer Loans, together with all other records, correspondence and documents necessary for the continued servicing and administration of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Notwithstanding the foregoing, the Servicer shall allow be allowed to retain a copy of all records, correspondence and documents provided to the Successor Servicer access to in compliance with the Servicer’s officers and employeesrecordkeeping policies or Requirements of Law. The predecessor Servicer shall be responsible for all expenses incurred in transferring the servicing duties to the Successor Servicer. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidentialconfidential or give the Successor Servicer access to software or other intellectual property, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphinterests.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Regional Management Corp.)
Servicer Defaults. If any one of the following events (each, a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Deal Agent as required by this Agreement including, without limitation, while Fidelity is Servicer, any payment required to be made under the Backup Servicer and Collateral Custodian Fee Letter, or to deliver any required Monthly Report or other Required Reports hereunder on or before the date occurring two Business Days after the date such payment, transfer transfer, deposit, instruction of notice or deposit report is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysAgreement;
(b) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any other Transaction Document to the Purchase Agreement which has a material adverse effect on the Servicer is a party and such failure Secured Parties, which continues unremedied for a period of 30 days after the earlier first to occur of the date on which the Servicer has actual knowledge of the failure and (i) the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Trustee, or to Deal Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(c) any representation and representation, warranty or certification made by the Servicer in this Indenture Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect in any material respect when made and made, which has a material and adverse impact effect on the Trustee’s interest in the Pledged Loans Secured Parties and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within which continues to be unremedied for a period of 30 Business Days days after the earlier first to occur of the date on which the Servicer has actual knowledge of such breach and (i) the date on which written notice of such breach incorrectness requiring that such breach the same to be remedied, remedied shall have been given to the Servicer by the Trustee or to Deal Agent and (ii) the date on which the Servicer and the Trustee by the Insurer or the Holders of 25% or more of the Aggregate Principal Amount of the Notesbecomes aware thereof;
(d) an Insolvency Event shall occur with respect to the Servicer Servicer;
(e) any material delegation of the Servicer's duties which is not permitted by Section 7.1;
(f) any financial or Asset information reasonably requested by the Deal Agent or the Performance GuarantorPurchaser as provided herein is not reasonably provided as requested;
(g) the rendering against the Servicer of a final judgment, decree or order for the payment of money in excess of U.S. $1,000,000 and the continuance of such judgment, decree or order unsatisfied and in effect for any period of 61 consecutive days without a stay of execution;
(h) the failure of the Servicer to make any payment due with respect to aggregate recourse debt or other obligations with an aggregate principal amount exceeding U.S. $1,000,000 or the occurrence of any event or condition which would permit acceleration of such recourse debt or other obligations if such event or condition has not been waived;
(i) any change in the management of the Servicer relating to the positions of President, CEO, Chairman of the Board and Executive Vice President; or
(ej) any change in the control of the Servicer shall fail which takes the form of either a merger or consolidation in which the Servicer is not the surviving entity. Notwithstanding anything herein to deliver the reports described in Section 8.1 of this Indenture and such failure shall continue for five Business Days. THENcontrary, so long as any such Servicer Default shall be continuingnot have been remedied, the Control Party Deal Agent, by written notice then given in writing to the Servicer (with a copy to the Backup Servicer, the Swap Counterparty, the Issuer, the Trustee, the Insurer and each Rating Agency ) (a “"Termination Notice”"), may terminate all of the rights and obligations of the Servicer as Servicer under this Indenture (such termination being herein called a “Service Transfer”). After receipt by the Servicer and the Trustee of such Termination Notice and subject to the terms of Section 12.2(a), the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture shall pass to and be vested in the Trustee or such Successor Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Pledged Loans provided for under this Indenture, including without limitation all authority over any Collections which shall on the date of transfer be held by the Servicer for deposit in a Lockbox Account or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphAgreement.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Fidelity Leasing Inc)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any required payment, transfer or deposit or to give instructions or notice to the Indenture Trustee to make such payment, transfer or deposit on or before the date such payment, transfer or deposit or such instruction or notice is required to be made or given by given, as the Servicer case may be, under the terms of this Indenture Agreement or the Indenture, in an aggregate amount exceeding $50,000, and such which failure remains continues unremedied for two a period of five (5) Business Days; providedDays after the earlier of (i) the date on which notice of such failure, howeverrequiring the same to be remedied, that if shall have been given by registered or certified mail to the Servicer is unable by the Issuer or the Indenture Trustee, or to make a payment, transfer or deposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business DaysIssuer and the Indenture Trustee by the Required Noteholders and (ii) the actual knowledge of the Servicer thereof;
(b) any failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture Agreement or the Indenture, or in any other Transaction Document to which certificate delivered by the Servicer is pursuant to this Agreement or the Indenture, which failure has a party material adverse effect on the interests of the Noteholders (as determined by the Threshold Noteholders) and such failure which continues unremedied for a period of 30 forty-five (45) days after the earlier of (i) the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given by registered or certified mail to the Servicer by the Issuer or the Indenture Trustee, or to the Servicer Servicer, the Issuer and the Indenture Trustee by the Insurer or Threshold Noteholders and (ii) the Holders of 25% or more actual knowledge of the Aggregate Principal Amount of the NotesServicer thereof;
(c) any representation and representation, warranty or certification made by the Servicer in this Indenture Agreement or the Indenture, or in any certificate delivered by the Servicer pursuant to this Agreement or the Indenture, shall prove to have been incorrect in any material respect when made or deemed made and such failure has a material and adverse impact effect on the Trustee’s interest in Noteholders (as determined by the Pledged Loans Threshold Noteholders) and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days which continues unremedied for a period of forty-five (45) days after the earlier of (i) the date on which a notice specifying such incorrect representation or warranty and requiring the Servicer has actual knowledge of such breach and the date on which written notice of such breach requiring that such breach same to be remedied, shall have been given by registered or certified mail to the Servicer by the Trustee Issuer or the Indenture Trustee, or to the Servicer Servicer, the Issuer, and the Indenture Trustee by the Insurer or Threshold Noteholders and (ii) the Holders of 25% or more actual knowledge of the Aggregate Principal Amount of the Notes;Servicer thereof; or
(d) an Insolvency Event shall occur with respect to the Servicer; then, in the event of any Servicer or the Performance Guarantor; or
(e) the Servicer shall fail to deliver the reports described in Section 8.1 of this Indenture and such failure shall continue for five Business Days. THENDefault, so long as such a Servicer Default shall be is continuing, the Control Party Indenture Trustee may (and upon the written direction of the Required Noteholders shall), by notice then given in writing to the Servicer, the Swap Counterparty, Issuer and the Issuer, the Trustee, the Insurer and each Rating Agency Back-up Servicer (a “Termination Notice”), may ) (i) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and the Indenture and (ii) direct the applicable party to terminate any power of attorney granted to the Servicer or any Subservicer and direct such termination being herein called party to execute a “Service Transfer”)new power of attorney to the Indenture Trustee or its designee. The existence of a Servicer Default may be waived with the consent of the Required Noteholders. Notwithstanding the foregoing, a delay in or failure of performance referred to under paragraph (a) above for an additional period of five (5) Business Days after the applicable grace period or referred to under paragraph (b) or (c) above for a period of forty-five (45) days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by a Force Majeure Event. If, following the expiration of such incremental forty-five (45) day grace period in the case of a delay or failure of performance described in paragraph (b) or (c) above, the applicable delay or failure of performance remains outstanding but the Servicer continues to work diligently to remedy such delay or failure of performance, then the grace period shall be extended for a further thirty (30) days upon notice from the Servicer to the Indenture Trustee. The preceding sentences will not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Issuer and the Depositor with an Officer’s Certificate giving prompt notice of such failure or delay, together with a description of its efforts so to perform its obligations. After receipt by the Servicer of a Termination Notice, and effective on the Trustee of such Termination Notice and subject to the terms of Section 12.2(a)Servicing Transfer Date, the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer shall have been appointed pursuant to Section 12.2 and all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in the Successor Servicer (a “Servicing Transfer”) appointed by the Indenture Trustee (at the written direction of the Required Noteholders if the Successor Servicer is not the Back-up Servicer or such Successor Servicer, as the case may be, without further action on the part of any Person, Indenture Trustee) pursuant to Section 8.02; and, without limitation, the Indenture Trustee at the direction of the Control Party (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperatecooperate promptly) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsServicing Transfer. The Servicer agrees to reasonably cooperate and to cause each Subservicer to reasonably cooperate (and each Subservicer agrees to cooperate) with the Indenture Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder and (ii) transferring all duties and obligations of the Servicer hereunder to such Successor Servicer, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service and administer the Pledged Loans provided for under this IndentureAgreement, including without limitation all authority over any all Collections which shall on the date of transfer be held by the Servicer for deposit deposit, or which have been deposited by the Servicer, in a Lockbox the Collection Account or other applicable Note Account, or which shall thereafter be received by the Servicer with respect to the Pledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall promptly transfer to the Successor Servicer all its electronic records relating to the Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer Loans, together with all other records, correspondence and documents necessary for the continued servicing and administration of the Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Notwithstanding the foregoing, the Servicer shall allow be allowed to retain a copy of all records, correspondence and documents provided to the Successor Servicer access to in compliance with the Servicer’s officers and employeesrecordkeeping policies or Requirements of Law. The predecessor Servicer shall be responsible for all expenses incurred in transferring the servicing duties to the Successor Servicer. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidentialconfidential or give the Successor Servicer access to software or other intellectual property, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interest and as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraphinterests.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Regional Management Corp.)
