Servicer Termination Events. If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing on any day: (i) any failure by the Servicer to make any payment, transfer or deposit as required by this Agreement and, except with respect to payments, transfers or deposits required in connection with the occurrence of the Scheduled Maturity Date, such failure shall have continued without cure for a period of two Business Days; or {B2297203; 11} - 61 - (ii) any failure by the Servicer to give instructions or notice to the Borrower, any Lender or Managing Agent and/or the Facility Agent as required by this Agreement or to deliver any Required Reports hereunder on or before the date occurring three Business Days after the date such instructions, notice or report is required to be made or given, as the case may be, under the terms of this Agreement; or (iii) any representation or warranty made or deemed made by the Servicer hereunder or under any other Transaction Document to which it is a party shall prove to be incorrect in any material respect as of the time when the same shall have been made and, in each case if such incorrectness is reasonably able to be remedied, when such incorrectness continues unremedied for more than fifteen (15) days after the first to occur of (i) the date on which written notice of such incorrectness requiring the same to be remedied shall have been given to the Servicer by the Borrower, the Facility Agent, any Lender or Managing Agent or the Collateral Custodian and (ii) the date on which the Servicer becomes aware thereof; or (iv) 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 Agreement or any other Transaction Document, other than those expressly addressed in another clause of this Section 7.18, to which it is a party as Servicer and, in each case if such failure is reasonably able to be remedied, when such failure continues unremedied for more than fifteen (15) days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Borrower, the Facility Agent, any Managing Agent or Lender or the Collateral Custodian and (ii) the date on which the Servicer becomes aware thereof; or (v) the Servicer shall fail to service the Transferred Loans in accordance with the Management Manual; or (vi) the occurrence of any Event of Default; or (vii) an Insolvency Event shall occur with respect to the Servicer or the Subservicer; or (viii) the Servicer agrees or consents to, or otherwise permits to occur, any amendment, modification, change, supplement or revision of or to the Management Manual in whole or in part that could reasonably be expected to have a material adverse effect upon the Transferred Loans or interest of any Lender, without the prior written consent of the Facility Agent; or (ix) the Servicer or Subservicer shall be in (A) default in the payment of any Indebtedness in an individual or aggregate principal amount (or having a facility amount) in excess of (1) in the case of the Servicer, $25,000,000 {B2297203; 11} - 62 - or (2) in the case of the Subservicer, $1,000,000 beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or (B) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, with the giving of notice if required, any such Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its stated maturity, or to cause the termination of any related lending commitment prior to the stated termination date thereof (any applicable grace period having expired); or (x) (A) a (x) final judgment for the payment of money in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $1,000,000 (individually or in the aggregate) or (y) final non-appealable judgment for the payment of money in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $2,500,000 individually shall have been rendered against the Servicer or the Subservicer by a court of competent jurisdiction, and such judgment, decree or order shall continue unsatisfied and in effect for any period of 30 consecutive days without a stay of execution, or (B) the Servicer or Subservicer shall have made payments of amounts in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $1,000,000 in settlement of any litigation, provided that any judgment rendered against the Subservicer shall be deemed a judgment rendered against the Servicer for purposes of this clause (x) if the Servicer shall satisfy such judgment from its own funds by reason of an indemnification obligation; or (xi) the Tangible Net Worth of the Servicer at the end of any of the Servicer’s fiscal quarters shall be less than the Minimum Tangible Net Worth; or (xii) any Material Adverse Change occurs in the financial condition of the Servicer or the Subservicer; or (xiii) any Change-in-Control of the initial Servicer or the Subservicer occurs without the prior written consent of the Borrower and the Facility Agent; or (xiv) the Advisory Agreement shall be terminated, whether by action of either party thereto, by operation of law or by reason of its failure to be renewed, or otherwise the Advisory Agreement shall cease to be in full force and effect; or the Advisory Agreement shall have been amended or otherwise modified, without the prior written consent of the Facility Agent, in a manner that might (in the reasonable judgment of the Facility Agent) have a Material Adverse Effect; or PCM shall cease to be the adviser under the Advisory Agreement; {B2297203; 11} - 63 - then, notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied within three Business Days or, if a cure period is applicable thereto, within three Business days following the expiration of such cure period, the Facility Agent may, or at the direction of the Required Lenders shall, by written notice to the Servicer and the Backup Servicer (a “Servicer Termination Notice”), subject to the provisions of Section 7.19, terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer in accordance with the Priority of Payments.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Prospect Capital Corp)
Servicer Termination Events. If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing on any day:
: (i) any failure by the Servicer to make any payment, transfer or deposit as required by this Agreement and, except with respect to payments, transfers or deposits required in connection with the occurrence of the Scheduled Maturity Date, and such failure shall have continued without cure continue for a period of two (2) Business Days; or {B2297203; 11} - 61 -
(ii) any failure by the Servicer to give instructions or notice to the Borrower, any Lender or Managing Agent and/or the Facility Administrative Agent as required by this Agreement or to deliver any Required Reports hereunder on or before the date occurring three two Business Days after the date such instructions, notice or report is required to be made or given, as the case may be, under the terms of this Agreement; or
(iii) any representation or warranty made or deemed made by the Servicer hereunder or under any other Transaction Document to which it is a party shall prove to be incorrect in any material respect as of the time when the same shall have been made and, in each case if such incorrectness is reasonably able to be remedied, when such incorrectness continues unremedied for more than fifteen (15) days after the first to occur of (i) the date on which written notice of such incorrectness requiring the same to be remedied shall have been given to the Servicer by the Borrower, the Facility Agent, any Lender or Managing Agent or the Collateral Custodian and (ii) the date on which the Servicer becomes aware thereof; or
(iv) 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 Agreement or any other Transaction Document, other than those expressly addressed in another clause of this Section 7.18, Document to which it is a party as Servicer and, in each case if such failure is reasonably able to be remedied, when such failure that 99 continues unremedied for more than a period of fifteen (15) days after the first to occur of (A) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Managing Agent or the Borrower and (B) the date on which the Servicer becomes or reasonably should have become aware thereof; (iv) any representation, warranty or certification made by the Servicer in this 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 such failure, if susceptible to a cure, shall continue unremedied for a period of fifteen (15) days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Borrower, the Facility Administrative Agent, any Managing Agent or Lender or the Collateral Custodian Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof; or
(v) the Servicer shall fail to service the Transferred Loans in accordance with the Management ManualCredit and Collection Policy; or
(vi) the occurrence of any Event of Default; or
(vii) an Insolvency Event shall occur with respect to the Servicer or the SubservicerServicer; or
(viiivii) the Servicer agrees or consents to, or otherwise permits to occur, any amendment, modification, change, supplement or revision of or to materially alter the Management Manual in whole or in part that could reasonably be expected to have a material adverse effect upon the Transferred Loans or interest of any Lender, Credit and Collection Policy without the prior written consent of the Facility AgentRequired Lenders; or
(viii) any financial or asset information reasonably requested by the Administrative Agent or any Managing Agent as provided herein is not provided as requested within five (5) Business Days (or such longer period as the Administrative Agent or such Managing Agent may consent to) of the receipt by the Servicer of such request; (ix) the rendering against the Servicer of a final judgment, decree or Subservicer shall be in (A) default in the payment of any Indebtedness in an individual or aggregate principal amount (or having a facility amount) in excess of (1) in the case of the Servicer, $25,000,000 {B2297203; 11} - 62 - or (2) in the case of the Subservicer, $1,000,000 beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or (B) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, with the giving of notice if required, any such Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its stated maturity, or to cause the termination of any related lending commitment prior to the stated termination date thereof (any applicable grace period having expired); or
(x) (A) a (x) final judgment order for the payment of money in excess of (1) in the case of the Servicer, U.S. $25,000,000 or (2) in the case of the Subservicer, $1,000,000 5,000,000 (individually or in the aggregate) or (y) final non-appealable judgment for and the payment continuance of money in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $2,500,000 individually shall have been rendered against the Servicer or the Subservicer by a court of competent jurisdiction, and such judgment, decree or order shall continue unsatisfied and in effect for any period of 30 consecutive days without a stay of execution, or (B) the Servicer or Subservicer shall have made payments of amounts in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $1,000,000 in settlement of any litigation, provided that any judgment rendered against the Subservicer shall be deemed a judgment rendered against the Servicer for purposes of this clause ; (x) the failure of the Performance Guarantor 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 that would permit acceleration of such recourse debt or other obligations if the Servicer shall satisfy such judgment from its own funds by reason of an indemnification obligationevent or condition has not been waived; or
(xi) the Tangible Net Worth any Guarantor Event of the Servicer at the end of any of the Servicer’s fiscal quarters Default shall be less than the Minimum Tangible Net Worthoccur; or
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or a material adverse change occurs with regard to the Subservicer; or
(xiii) any Change-in-Control collectibility of the initial Servicer or the Subservicer occurs without the prior written consent of the Borrower and the Facility AgentTransferred Loans, taken as a whole; or
(xiv) the Advisory Agreement shall be terminated, whether by action of either party thereto, by operation of law or by reason of its failure to be renewed, or otherwise the Advisory Agreement shall cease to be in full force and effect; or the Advisory Agreement shall have been amended or otherwise modified, without the prior written consent of the Facility Agent, in a manner that might (in the reasonable judgment of the Facility Agent) have a Material Adverse Effect; or PCM shall cease to be the adviser under the Advisory Agreement; {B2297203; 11} - 63 - then, notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied within three Business Days or, if a cure period is applicable thereto, within three Business days following the expiration of such cure period, the Facility Agent may, or at the direction of the Required Lenders shall, by written notice to the Servicer and the Backup Servicer (a “Servicer Termination Notice”), subject to the provisions of Section 7.19, terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer in accordance with the Priority of Payments.100
Appears in 1 contract
Samples: Credit Agreement (Gladstone Investment Corporation\de)
Servicer Termination Events. If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing on any daydate:
(ia) any failure by the Servicer to make any payment, transfer or deposit as required by this Agreement and, except with respect to payments, transfers or deposits required in connection with the occurrence of the Scheduled Maturity Date, such failure shall have continued without cure for a period of two Business Days; or {B2297203; 11} - 61 -
(ii) any failure by the Servicer to give instructions or notice to the Borrower, the Agent or any Lender or Managing Agent and/or the Facility Agent as required by this Agreement or to deliver any Required Reports hereunder on or before the date occurring three Business Days after the date such instructionspayment, transfer, deposit, instruction or notice or report is required to be made or given, as the case may be, under the terms of this Agreement; or;
(iii) any representation or warranty made or deemed made by the Servicer hereunder or under any other Transaction Document to which it is a party shall prove to be incorrect in any material respect as of the time when the same shall have been made and, in each case if such incorrectness is reasonably able to be remedied, when such incorrectness continues unremedied for more than fifteen (15) days after the first to occur of (i) the date on which written notice of such incorrectness requiring the same to be remedied shall have been given to the Servicer by the Borrower, the Facility Agent, any Lender or Managing Agent or the Collateral Custodian and (ii) the date on which the Servicer becomes aware thereof; or
(ivb) 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 Agreement or any other Transaction Document, other than those expressly addressed in another clause of this Section 7.18, Document to which it is a party as Servicer and, in each case if such failure is reasonably able to be remedied, when such failure that continues unremedied for more than fifteen (15) a period of 30 days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Borrower, the Facility Agent, any Managing Agent or Lender or the Collateral Custodian Borrower and (ii) the date on which an officer of the Servicer becomes aware thereof; or;
(v) the Servicer shall fail to service the Transferred Loans in accordance with the Management Manual; or
(vi) the occurrence of any Event of Default; or
(viic) an Insolvency Event shall occur with respect to the Servicer or the Subservicer; orany of its Affiliates;
(viiid) the Servicer shall fail in any material respect to service the Transferred Loans in accordance with the Credit and Collection Policy;
(e) the Servicer agrees or consents to, to or otherwise permits to occur, any amendment, modification, change, supplement or revision of or to material change in the Management Manual in whole or in part that could reasonably be expected to have a material adverse effect upon the Transferred Loans or interest of any Lender, Credit and Collection Policy without the prior written consent of the Facility Agent; orAgent and each Lender;
(ixf) any Change in Control of the Servicer is made without the prior written consent of the Agent and each Lender;
(g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $100,000,000 plus seventy-five (75%) percent of any new equity issued after August 2, 2005;
(h) the Servicer shall fail to maintain its status as a business development company or Subservicer as a registered investment company under the 1940 Act;
(i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be in (A) default in the payment of any Indebtedness in an individual made or aggregate principal amount (or having a facility amount) in excess of (1) in given, as the case may be, under the terms of this Agreement;
(k) any representation, warranty or certification made by the Servicer, $25,000,000 {B2297203; 11} - 62 - Servicer in this Agreement or (2) in the case of the Subservicer, $1,000,000 beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or (B) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto or any other event certificate delivered pursuant to this Agreement shall occur or condition exist, the effect of which default or other event or condition is prove to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, with the giving of notice if required, any such Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its stated maturity, or to cause the termination of any related lending commitment prior to the stated termination date thereof (any applicable grace period having expired); orhave been incorrect when made;
(xl) (A) a (x) the rendering against the Servicer of one or more final judgment judgments, decrees or orders for the payment of money in excess of (1) in the case 10% of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $1,000,000 (individually or in the aggregate) or (y) final non-appealable judgment for the payment of money in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $2,500,000 individually shall have been rendered against the Servicer or the Subservicer by a court of competent jurisdiction, and such judgment, decree or order shall continue unsatisfied and in effect for any period of 30 consecutive days without a stay of execution, or (B) the Servicer or Subservicer shall have made payments of amounts in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $1,000,000 in settlement of any litigation, provided that any judgment rendered against the Subservicer shall be deemed a judgment rendered against the Servicer for purposes of this clause (x) if the Servicer shall satisfy such judgment from its own funds by reason of an indemnification obligation; or
(xi) the Tangible Net Worth of the Servicer at (individually or in the end aggregate);
(m) 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 that would permit acceleration of the Servicer’s fiscal quarters shall be less than the Minimum Tangible Net Worthsuch recourse debt or other obligations if such event or condition has not been waived; or
(xiin) any Material Adverse Change occurs in the financial condition of the Servicer or shall incur additional Indebtedness in excess of $30,000,000 after the SubservicerClosing Date; or
(xiii) any Change-in-Control of the initial Servicer or the Subservicer occurs without the prior written consent of the Borrower and the Facility Agent; or
(xiv) the Advisory Agreement shall be terminated, whether by action of either party thereto, by operation of law or by reason of its failure to be renewed, or otherwise the Advisory Agreement shall cease to be in full force and effect; or the Advisory Agreement shall have been amended or otherwise modified, without the prior written consent of the Facility Agent, in a manner that might (in the reasonable judgment of the Facility Agent) have a Material Adverse Effect; or PCM shall cease to be the adviser under the Advisory Agreement; {B2297203; 11} - 63 - then, then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied within three Business Days or, if a cure period is applicable thereto, within three Business days following at the expiration of such any applicable cure period, the Facility Agent may, or at the direction of the Required Lenders shallAgent, by written notice to the Servicer and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.197.26, terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer in accordance with the Priority of PaymentsServicer.
Appears in 1 contract
Samples: Loan Funding and Servicing Agreement (Patriot Capital Funding, Inc.)
Servicer Termination Events. If The occurrence and continuance of any one of the following events (shall constitute a “Servicer Termination Event”) shall occur and be continuing on any day” hereunder:
(ia) any Any failure by the Servicer to make deliver to the Lenders any payment, transfer proceeds or deposit as payment required by to be so delivered under the terms of this Agreement and, except with respect to payments, transfers or deposits required in connection with the occurrence of the Scheduled Maturity Date, any Servicer Transaction Document and such failure shall have continued without cure continues unremedied for a period of two (2) Business Days; Days after the earlier of actual knowledge or {B2297203; 11} - 61 -written notice thereof;
(iib) any Any failure by the Servicer to give instructions deliver a Monthly Report in accordance with this Agreement on any Determination Date or, solely if such failure could not be prevented by the exercise of reasonable diligence by the Servicer and such failure was caused by a Force Majeure Event, the failure by the Servicer to deliver such Servicer’s Certificate on or notice prior to the Borrowerfifth (5th) Business Day following the related Payment Date;
(c) Any Lien securing the Obligations shall, in whole or in part, not be or cease to be a perfected first priority security interest as a result of any Lender act or Managing Agent and/or omission on the Facility Agent as required by part of the Servicer;
(i) Failure on the part of the Servicer to duly observe or perform any covenants or agreements of the Servicer set forth in Section 2.11(c) hereof; or (ii) failure on the part of the Servicer to duly observe or perform any covenants or agreements of the Servicer set forth in this Agreement or to deliver any Required Reports hereunder on or before the date occurring three Business Days after the date such instructions, notice or report is required to be made or given, as the case may be, under the terms of this Agreement; or
(iii) any representation or warranty made or deemed made by the Servicer hereunder or under any other Transaction Document (other than those covenants and agreements described in subclause (i) of this clause (d) or clauses (a), (b) and (c) of this Section 7.14), and such failure adversely affects the rights or interests of the Lenders and continues unremedied for a period of twenty (20) days after the earlier of actual knowledge and notice thereof;
(e) The Servicer shall become subject to which it is a party an Insolvency Event;
(f) Any representation, warranty or statement of the Servicer made in this Agreement or any Transaction Document, or any certificate, report or other writing delivered pursuant thereto, shall prove to be incorrect in any material respect as of the time when the same shall have been made and, in each case if such incorrectness capable of being cured, is reasonably able to be remedied, when such incorrectness continues unremedied for more than fifteen not cured within twenty (1520) days after the first to occur earlier of (i) the date on which written actual knowledge or notice of such incorrectness requiring the same to be remedied shall have been given to the Servicer by the Borrower, the Facility Agent, any Lender or Managing Agent or the Collateral Custodian and (ii) the date on which the Servicer becomes aware thereof; or
(ivg) 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 Agreement or any other Transaction Document, other than those expressly addressed in another clause of this Section 7.18, to which it A Termination Event has occurred and is a party as Servicer and, in each case if such failure is reasonably able to be remedied, when such failure continues unremedied for more than fifteen (15) days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Borrower, the Facility Agent, any Managing Agent or Lender or the Collateral Custodian and (ii) the date on which the Servicer becomes aware thereof; or
(v) the Servicer shall fail to service the Transferred Loans in accordance with the Management Manual; or
(vi) continuing. Upon the occurrence of any Event of Default; or
(vii) an Insolvency Event shall occur with respect to the Servicer or the Subservicer; or
(viii) the Servicer agrees or consents to, or otherwise permits to occur, any amendment, modification, change, supplement or revision of or to the Management Manual in whole or in part that could reasonably be expected to have a material adverse effect upon the Transferred Loans or interest of any Lender, without the prior written consent of the Facility Agent; or
(ix) the Servicer or Subservicer shall be in (A) default in the payment of any Indebtedness in an individual or aggregate principal amount (or having a facility amount) in excess of (1) in the case of the Servicer, $25,000,000 {B2297203; 11} - 62 - or (2) in the case of the Subservicer, $1,000,000 beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or (B) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, with the giving of notice if required, any such Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its stated maturity, or to cause the termination of any related lending commitment prior to the stated termination date thereof (any applicable grace period having expired); or
(x) (A) a (x) final judgment for the payment of money in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $1,000,000 (individually or in the aggregate) or (y) final non-appealable judgment for the payment of money in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $2,500,000 individually shall have been rendered against the Servicer or the Subservicer by a court of competent jurisdiction, and such judgment, decree or order shall continue unsatisfied and in effect for any period of 30 consecutive days without a stay of execution, or (B) the Servicer or Subservicer shall have made payments of amounts in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $1,000,000 in settlement of any litigation, provided that any judgment rendered against the Subservicer shall be deemed a judgment rendered against the Servicer for purposes of this clause (x) if the Servicer shall satisfy such judgment from its own funds by reason of an indemnification obligation; or
(xi) the Tangible Net Worth of the Servicer at the end of any of the Servicer’s fiscal quarters shall be less than the Minimum Tangible Net Worth; or
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or the Subservicer; or
(xiii) any Change-in-Control of the initial Servicer or the Subservicer occurs without the prior written consent of the Borrower and the Facility Agent; or
(xiv) the Advisory Agreement shall be terminated, whether by action of either party thereto, by operation of law or by reason of its failure to be renewed, or otherwise the Advisory Agreement shall cease to be in full force and effect; or the Advisory Agreement shall have been amended or otherwise modified, without the prior written consent of the Facility Agent, in a manner that might (in the reasonable judgment of the Facility Agent) have a Material Adverse Effect; or PCM shall cease to be the adviser under the Advisory Agreement; {B2297203; 11} - 63 - thenforegoing, notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events Event shall not have been remedied within three Business Days or, if a any applicable cure period is applicable theretoor waived in writing by the Administrative Agent (at the direction, within three Business days following and with the expiration consent, of such cure periodthe Supermajority Lenders), the Facility Agent may, or at the direction of the Required Lenders shallAdministrative Agent, by written notice to the Servicer (with a copy to the Backup Servicer, the Paying Agent, each Hedge Counterparty and the Backup Servicer Collateral Custodian) (each, a “Servicer Termination Notice”), subject to may, with the provisions of Section 7.19consent of, and shall, at the direction of, Supermajority Lenders, terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer in accordance with the Priority of Payments.
Appears in 1 contract
Servicer Termination Events. If any The occurrence or existence of one or more of the following events (or facts which is continuing shall constitute a “"Servicer Termination Event”) shall occur and be continuing on any day" hereunder:
(ia) any failure by the Servicer fails to make any payment, transfer payment or deposit as required by this Agreement and, except with respect to payments, transfers or deposits required in connection with the occurrence of the Scheduled Maturity Date, such failure shall have continued without cure for a period of two Business Days; or {B2297203; 11} - 61 -
(ii) any failure by the Servicer to give instructions or notice to the Borrower, any Lender or Managing Agent and/or the Facility Agent as required by this Agreement or to deliver any Required Reports hereunder on or before the date occurring three Business Days after the date such instructions, notice or report is required to be made or given, as the case may be, under the terms by it hereunder within two Business Days of this Agreement; orbeing due;
(iiib) the Servicer fails to perform or observe any term, condition, covenant or agreement to be performed or observed by it hereunder (other than as specified in Section 5.9(a)) which failure could have a Material Adverse Effect, and any such failure remains unremedied for 30 days after notice thereof to the Servicer (and the Canadian Seller, if the Canadian Seller is not the Servicer);
(c) any representation or warranty made or deemed made by the Servicer hereunder in or under pursuant to this Agreement, or any other Transaction Document Related Document, proves to which it is a party shall prove to be have been false or incorrect in any material respect as of the time when the same shall have been made and, in each case if such incorrectness capable of being cured, is reasonably able to be remedied, when such incorrectness continues unremedied for more than fifteen (15) not cured within 30 days after the first to occur of (i) the date on which written notice of such incorrectness requiring the same to be remedied shall have been given to the Servicer by the Borrower, the Facility Agent, any Lender or Managing Agent or the Collateral Custodian and (ii) the date on which the Servicer becomes aware thereof; or
(iv) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of becoming aware thereof;
(d) the Servicer set forth in this Agreement (if not the Canadian Seller) fails to pay any Indebtedness when due (whether by scheduled maturity, required prepayment, acceleration, demand or any other Transaction Document, other than those expressly addressed in another clause of this Section 7.18, to which it is a party as Servicer and, in each case if such failure is reasonably able to be remedied, when otherwise) and such failure continues unremedied for more than fifteen (15) days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Borrower, the Facility Agent, any Managing Agent or Lender or the Collateral Custodian and (ii) the date on which the Servicer becomes aware thereof; or
(v) the Servicer shall fail to service the Transferred Loans in accordance with the Management Manual; or
(vi) the occurrence of any Event of Default; or
(vii) an Insolvency Event shall occur with respect to the Servicer or the Subservicer; or
(viii) the Servicer agrees or consents to, or otherwise permits to occur, any amendment, modification, change, supplement or revision of or to the Management Manual in whole or in part that could reasonably be expected to have a material adverse effect upon the Transferred Loans or interest of any Lender, without the prior written consent of the Facility Agent; or
(ix) the Servicer or Subservicer shall be in (A) default in the payment of any Indebtedness in an individual or aggregate principal amount (or having a facility amount) in excess of (1) in the case of the Servicer, $25,000,000 {B2297203; 11} - 62 - or (2) in the case of the Subservicer, $1,000,000 beyond the period of graceapplicable grace period, if any, provided specified in the any agreement or instrument or agreement under which relating to such Indebtedness was createdIndebtedness; or (B) default in the observance or performance of any other default under any agreement or condition instrument relating to any such Indebtedness or contained in any instrument or agreement evidencingIndebtedness, securing or relating thereto or any other event event, shall occur or condition exist, if the effect of which such default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, with the giving of notice if required, any such Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its stated maturity, or to cause the termination of any related lending commitment prior to the stated termination date thereof (any applicable grace period having expired); or
(x) (A) a (x) final judgment for the payment of money in excess of (1) would result in the case occurrence of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $1,000,000 (individually or in the aggregate) or (y) final non-appealable judgment for the payment of money in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $2,500,000 individually shall have been rendered against the Servicer or the Subservicer by a court of competent jurisdiction, and such judgment, decree or order shall continue unsatisfied and in effect for any period of 30 consecutive days without a stay of execution, or (B) the Servicer or Subservicer shall have made payments of amounts in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $1,000,000 in settlement of any litigation, provided that any judgment rendered against the Subservicer shall be deemed a judgment rendered against the Servicer for purposes of this clause (x) if the Servicer shall satisfy such judgment from its own funds by reason of an indemnification obligation; or
(xi) the Tangible Net Worth of the Servicer at the end of any of the Servicer’s fiscal quarters shall be less than the Minimum Tangible Net Worth; or
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or the Subservicer; or
(xiii) any Change-in-Control of the initial Servicer or the Subservicer occurs without the prior written consent of the Borrower and the Facility Agent; or
(xiv) the Advisory Agreement shall be terminated, whether by action of either party thereto, by operation of law or by reason of its failure to be renewed, or otherwise the Advisory Agreement shall cease to be in full force and effect; or the Advisory Agreement shall have been amended or otherwise modified, without the prior written consent of the Facility Agent, in a manner that might (in the reasonable judgment of the Facility Agent) have a Material Adverse Effect; or
(e) the Servicer shall generally not pay its debts as they become due, or PCM shall cease admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceedings shall be instituted by or against the adviser Servicer seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding-up, reorganization, arrangement, adjustment, protection, relief or THIS DOCUMENT AND ANY COPIES THEREOF, ELECTRONIC OR OTHERWISE, ARE THE PROPERTY OF EFFICIENT CAPITAL CORPORATION. UNAUTHORIZED DISTRIBUTION OF THIS DOCUMENT, ELECTRONIC OR OTHERWISE, IS PROHIBITED WITHOUT THE EXPRESS PRIOR WRITTEN CONSENT OF EFFICIENT CAPITAL CORPORATION. THIS DOCUMENT AND ANY COPIES THEREOF, ELECTRONIC OR OTHERWISE, ARE TO BE RETURNED UPON THE REQUEST OF EFFICIENT CAPITAL CORPORATION. composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking the Advisory Agreement; {B2297203; 11} - 63 - thenentry of an order for relief by the appointment of a receiver, notwithstanding anything herein to the contrary, so long as trustee or other similar official for it or for any such Servicer Termination Events shall not have been remedied within three Business Days orsubstantial part of its property and, if such proceeding has been instituted against the Servicer, either such proceeding has not been stayed or dismissed within 45 days or any of the actions sought in such proceeding (including the entry of an order for relief or the appointment of a cure period is applicable theretoreceiver, within three Business days following the expiration of such cure periodtrustee, the Facility Agent maycustodian or other similar official) are granted in whole or in part, or at the direction Servicer takes any corporate action to authorize any of the Required Lenders shall, by written notice to the Servicer and the Backup Servicer (a “Servicer Termination Notice”actions described in this Section 5.9(e), subject to the provisions of Section 7.19, terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer in accordance with the Priority of Payments.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Mitel Networks Corp)
Servicer Termination Events. If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing on any day:
(i) any failure by the Servicer to make any payment, transfer or deposit as required by this Agreement and, except with respect to payments, transfers or deposits required in connection with the occurrence of the Scheduled Maturity Date, and such failure shall have continued without cure continue for a period of two (2) Business Days; or {B2297203; 11} - 61 -;
(ii) any failure by the Servicer to give instructions or notice to the Borrower, any Lender or Managing Agent and/or the Facility Administrative Agent as required by this Agreement or to deliver any Required Reports hereunder on or before the date occurring three two Business Days after the date such instructions, notice or report is required to be made or given, as the case may be, under the terms of this Agreement; or;
(iii) any representation or warranty made or deemed made by the Servicer hereunder or under any other Transaction Document to which it is a party shall prove to be incorrect in any material respect as of the time when the same shall have been made and, in each case if such incorrectness is reasonably able to be remedied, when such incorrectness continues unremedied for more than fifteen (15) days after the first to occur of (i) the date on which written notice of such incorrectness requiring the same to be remedied shall have been given to the Servicer by the Borrower, the Facility Agent, any Lender or Managing Agent or the Collateral Custodian and (ii) the date on which the Servicer becomes aware thereof; or
(iv) 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 Agreement or any other Transaction Document, other than those expressly addressed in another clause of this Section 7.18, Document to which it is a party as Servicer and, in each case if such failure is reasonably able to be remedied, when such failure that continues unremedied for more than a period of fifteen (15) days after the first to occur of (A) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Managing Agent or the Borrower and (B) the date on which the Servicer becomes or reasonably should have become aware thereof;
(iv) any representation, warranty or certification made by the Servicer in this 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 such failure, if susceptible to a cure, shall continue unremedied for a period of fifteen (15) days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Borrower, the Facility Administrative Agent, any Managing Agent or Lender or the Collateral Custodian Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof; or;
(v) the Servicer shall fail to service the Transferred Loans in accordance with the Management Manual; orCredit and Collection Policy;
(vi) the occurrence of any Event of Default; or
(vii) an Insolvency Event shall occur with respect to the Servicer or the Subservicer; orServicer;
(viiivii) the Servicer agrees or consents to, or otherwise permits to occur, any amendment, modification, change, supplement or revision of or to materially alter the Management Manual in whole or in part that could reasonably be expected to have a material adverse effect upon the Transferred Loans or interest of any Lender, Credit and Collection Policy without the prior written consent of the Facility Agent; orRequired Lenders;
(viii) any financial or asset information reasonably requested by the Administrative Agent or any Managing Agent as provided herein is not provided as requested within five (5) Business Days (or such longer period as the Administrative Agent or such Managing Agent may consent to) of the receipt by the Servicer of such request;
(ix) the rendering against the Servicer of a final judgment, decree or Subservicer shall be in (A) default in the payment of any Indebtedness in an individual or aggregate principal amount (or having a facility amount) in excess of (1) in the case of the Servicer, $25,000,000 {B2297203; 11} - 62 - or (2) in the case of the Subservicer, $1,000,000 beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or (B) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, with the giving of notice if required, any such Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its stated maturity, or to cause the termination of any related lending commitment prior to the stated termination date thereof (any applicable grace period having expired); or
(x) (A) a (x) final judgment order for the payment of money in excess of (1) in the case of the Servicer, U.S. $25,000,000 or (2) in the case of the Subservicer, $1,000,000 5,000,000 (individually or in the aggregate) or (y) final non-appealable judgment for and the payment continuance of money in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $2,500,000 individually shall have been rendered against the Servicer or the Subservicer by a court of competent jurisdiction, and such judgment, decree or order shall continue unsatisfied and in effect for any period of 30 consecutive days without a stay of execution, or (B) the Servicer or Subservicer shall have made payments of amounts in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $1,000,000 in settlement of any litigation, provided that any judgment rendered against the Subservicer shall be deemed a judgment rendered against the Servicer for purposes of this clause ;
(x) the failure of the Performance Guarantor 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 that would permit acceleration of such recourse debt or other obligations if the Servicer shall satisfy such judgment from its own funds by reason of an indemnification obligation; orevent or condition has not been waived;
(xi) the Tangible Net Worth any Guarantor Event of the Servicer at the end of any of the Servicer’s fiscal quarters Default shall be less than the Minimum Tangible Net Worth; oroccur;
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or a material adverse change occurs with regard to the Subservicer; orcollectibility of the Transferred Loans, taken as a whole;
(xiii) any Change-in-Control of the initial Servicer or the Subservicer occurs is made without the prior written consent of the Borrower and the Facility Administrative Agent; or;
(xiv) the Advisory Agreement Performance Guarantor shall fail to maintain a minimum Net Worth equal to the sum of (i) $170,000,000 plus (ii) 50% of any equity and Subordinated Debt issued by the Performance Guarantor after the Effective Date;
(xv) the Performance Guarantor shall fail to satisfy the RIC/BDC Requirements;
(xvi) the Performance Guarantor shall fail to maintain “asset coverage” (as defined in and determined pursuant to Section 18 of the 0000 Xxx) with respect to its “senior securities representing indebtedness” (as defined in Section 18 of the 0000 Xxx) of at least 200% (or such higher percentage as may be set forth in Section 18 of the 1940 Act or as otherwise provided in Applicable Law); provided, that for purposes of testing compliance with this Section 7.18(xvi) the impact of the election of ASC 825 or similar accounting guideline with respect to determining the fair value of the debt of the Performance Guarantor on a consolidated basis shall be terminatedexcluded (for avoidance of doubt, whether by action the intent of either party thereto, by operation this language is to cause the debt of law or by reason of its failure the Performance Guarantor to be renewedvalued at par value rather than fair value)); or
(xvii) the Performance Guarantor shall pay any cash dividends; provided that the Performance Guarantor shall be permitted to pay cash dividends if the Servicer shall have caused the Performance Guarantor to have delivered a certificate to the Administrative Agent, or otherwise substantially in the Advisory Agreement shall cease form of Exhibit G hereto, at least 10 Business Days prior to the making of any such cash dividend to the effect that (i) the amount of the declared dividend has been determined in good faith by the Board of Directors of the Performance Guarantor on the basis of the most current financial information of the Performance Guarantor then available for the related period; (ii) the amount of the declared dividend does not exceed the net investment income and the net capital gain realized by the Performance Guarantor for the related period, based on the financial information referred to in clause (i) above; and (iii) to the extent the declared dividend does not equal the net investment income and the net capital gain realized by the Performance Guarantor for the related period, the proposed dividend to be in full force declared by the Performance Guarantor for the immediately ensuing period shall be either (x) reduced by the amount such dividend for the immediately preceding period exceeded the net investment income and effectthe net capital gain realized by the Performance Guarantor for the immediately preceding period or (y) increased by the amount such dividend or distribution for the immediately preceding period was less than the net investment income and the net capital gains realized by the Performance Guarantor for the immediately preceding period; or the Advisory Agreement shall have been amended or otherwise modified, without the prior written consent of the Facility Agent, in a manner that might (in the reasonable judgment of the Facility Agent) have a Material Adverse Effect; or PCM shall cease to be the adviser under the Advisory Agreement; {B2297203; 11} - 63 - then, notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied within three Business Days or, if a cure period is applicable thereto, within three Business days following at the expiration of such any applicable cure period, the Facility Administrative Agent may, or at the direction of the Required Lenders shall, by written notice to the Servicer and the Backup Servicer (a “Servicer Termination Notice”), subject to the provisions of Section 7.19, either (i) terminate all of the rights and obligations of the Servicer as Servicer under this AgreementAgreement or (ii) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and simultaneously reappoint the Servicer for a period not to exceed one month (subject to renewal at the sole discretion of the Administrative Agent, acting at the direction of the Required Lenders), at the expiration of which appointment the Servicer’s rights and obligations hereunder shall automatically terminate without further action on the part of any party hereto. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer in accordance with the Priority of PaymentsServicer.
Appears in 1 contract
Samples: Credit Agreement (Gladstone Investment Corporation\de)
Servicer Termination Events. If The occurrence and continuance of any one of the following events (shall constitute a “"Servicer Termination Event”) shall occur and be continuing on any day:
" hereunder: (ia) any failure by the Servicer to make any payment, transfer or deposit as required by this Agreement andit as required by any Basic Document, except with respect to paymentswhich it is a party, transfers or deposits required in connection with the occurrence of the Scheduled Maturity Date, such which failure shall have continued without cure for a period of two is not remedied within one Business DaysDay; or {B2297203; 11} - 61 -
(iib) any failure by the Servicer to give instructions or notice deliver the Monthly Report by the Reporting Date, which failure is not remedied within one Business Day; (c) an Insolvency Event shall occur with respect to the Borrower, Servicer; (d) any Lender failure by the Servicer duly to observe or Managing Agent and/or perform in any other covenant or agreement of the Facility Agent as required by Servicer set forth in this Agreement or the other Basic Documents to deliver any Required Reports hereunder on which the Servicer is a party, which such failure materially and adversely affects the rights or before interests of the date occurring three Business Days Secured Parties and remains unremedied for 30 days after the earlier of knowledge thereof by the Servicer or after the date on which written notice of such instructions, notice or report is required failure shall have been given to be made or given, as the case may be, under the terms of this AgreementServicer; or
(iiie) any representation representation, warranty or warranty made or deemed certification made by the Servicer hereunder in any Basic Document to which it is a party or under in any other Transaction certificate delivered pursuant to any Basic Document to which it is a party shall prove to be have been false or otherwise incorrect in any material respect as when made, deemed made, or delivered, which such incorrect representation, warranty or certification materially and adversely affects the rights or interests of the time when the same shall have been made Secured Parties and, in each case if such incorrectness is reasonably able to be remediedcured, when such incorrectness continues unremedied shall not have been cured for more than fifteen (15) 30 days after the first to occur earlier of (i) the date on which written notice of such incorrectness requiring the same to be remedied shall have been given to the Servicer by the Borrower, the Facility Agent, any Lender or Managing Agent or the Collateral Custodian and (ii) the date on which the Servicer becomes aware thereof; or
(iv) any failure on the part of the Servicer duly to observe first has knowledge thereof or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any other Transaction Document, other than those expressly addressed in another clause of this Section 7.18, to which it is a party as Servicer and, in each case if such failure is reasonably able to be remedied, when such failure continues unremedied for more than fifteen (15) days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer;
(i) one or more final nonappealable judgments shall be entered against the Servicer by one or more courts of competent jurisdiction assessing monetary damages, individually or in the Borroweraggregate over any calendar year, the Facility Agent, any Managing Agent or Lender or the Collateral Custodian and in excess of $1,000,000; (ii) the date on which one or more monetary settlements shall be entered into by the Servicer becomes aware thereofwith any Person, individually or in the aggregate over any calendar year, in excess of $1,000,000; or
(viii) the IRS shall file notice of a Lien pursuant to Section 6323 of the Code with regard to any assets of the Servicer and such Lien shall fail to service the Transferred Loans in accordance with the Management Manualnot have been released within 30 days; or
or (viiv) the occurrence Pension Benefit Guaranty Corporation shall file notice of a Lien pursuant to Section 4068 of ERISA with regard to any Event of Defaultthe assets of the Servicer and such Lien shall not have been released within 30 days; or
(viii) an Insolvency Event any Change in Control shall occur with respect to the Servicer or the SubservicerDFC; or
(viiij) a Termination Event shall have occurred and is continuing and shall not have been waived; (k) the Servicer agrees or consents to, or otherwise permits to occur, any amendment, modification, change, supplement or revision of or to the Management Manual in whole or in part that could reasonably be expected to have a material adverse effect upon the Transferred Loans or interest of any Lender, without the prior written consent of the Facility Agent; or
(ix) the Servicer or Subservicer shall be in (A) default in the payment of any Indebtedness in an individual or aggregate principal amount (or having a facility amount) in excess of (1) in the case of the Servicer, $25,000,000 {B2297203; 11} - 62 - or (2) in the case of the Subservicer, $1,000,000 beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or (B) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, with the giving of notice if required, any such Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its stated maturity, or to cause the termination of any related lending commitment prior to the stated termination date thereof (any applicable grace period having expired); or
(x) (A) a (x) final judgment for the payment of money in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $1,000,000 (individually or in the aggregate) or (y) final non-appealable judgment for the payment of money in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $2,500,000 individually shall have been rendered against the Servicer or the Subservicer by a court of competent jurisdiction, and such judgment, decree or order shall continue unsatisfied and in effect for any period of 30 consecutive days without a stay of execution, or (B) the Servicer or Subservicer shall have made payments of amounts in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $1,000,000 in settlement of any litigation, provided that any judgment rendered against the Subservicer shall be deemed a judgment rendered against the Servicer for purposes of this clause (x) if the Servicer shall satisfy such judgment from its own funds by reason of an indemnification obligation; or
(xi) the Tangible Net Worth of the Servicer at the end of any of the Servicer’s fiscal quarters shall be less than the Minimum Tangible Net Worth; or
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or the Subservicer; or
(xiii) any Change-in-Control of the initial Servicer or the Subservicer occurs without the prior written consent of the Borrower and the Facility Agent; or
(xiv) the Advisory Agreement shall be terminated, whether by action of either party thereto, by operation of law or by reason of its failure to be renewed, or otherwise the Advisory Agreement Performance Guaranty shall cease to be in full force and effect; or the Advisory Agreement shall have been amended or otherwise modified, without the prior written consent of the Facility Agent, in a manner that might effect (in the reasonable judgment of the Facility Agent) have a Material Adverse Effect; or PCM shall cease to be the adviser under the Advisory Agreement; {B2297203; 11} - 63 - then, notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied within three Business Days or, if a cure period is applicable thereto, within three Business days following the expiration of such cure period, the Facility Agent may, or at the direction of the Required Lenders shall, by written notice to the Servicer and the Backup Servicer (a “Servicer Termination Notice”), subject to the provisions of Section 7.19, terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer other than in accordance with its terms) or the Priority Performance Guarantor shall assert that it is not bound by, or otherwise seek to terminate or disaffirm its obligations under, the Performance Guaranty, or shall otherwise claim that the Performance Guaranty is in any way invalid or unenforceable; (l) as of Payments.any Reporting Date, the arithmetic mean of the Serviced Portfolio Delinquency Ratio for the three previous Collection Periods is greater than 6.00%; (m) as of any Reporting Date, the arithmetic mean of the Serviced Portfolio Net Loss Ratio (Prime) for the three previous Collection Periods is greater than 8.00%;
Appears in 1 contract
Samples: Loan Agreement (Lithia Motors Inc)
Servicer Termination Events. If The occurrence and continuance of any one of the following events (shall constitute a “Servicer Termination Event”) shall occur and be continuing on any day” hereunder:
(ia) any failure by the Servicer to (i) deliver any Collections or (ii) make any payment, transfer or deposit deposit, in each case as required by this Agreement andor any other Servicer Basic Document and which failure shall continue unremedied for two Business Days after (A) receipt of written notice of such failure by the Servicer from the Administrative Agent, except with respect to paymentsany Lender, transfers or deposits required in connection with the occurrence a Responsible Officer of the Scheduled Maturity Date, Collateral Custodian or a Responsible Officer of the Backup Servicer or (B) discovery of such failure shall have continued without cure for by a period Responsible Officer of two Business Days; or {B2297203; 11} - 61 -the Servicer;
(iib) any failure by the Servicer to give instructions or notice deliver to the BorrowerAdministrative Agent, any Lender each Lender, the Collateral Custodian or Managing Agent and/or the Facility Agent as Backup Servicer a Monthly Report and a Monthly Loan Tape when required by this Agreement or to deliver any Required Reports hereunder on or before the date occurring three that shall continue unremedied for two Business Days after the date such instructions, notice or report is required to be made or given, as the case may be, under the terms of this Agreement; or
(iii) any representation or warranty made or deemed made by the Servicer hereunder or under any other Transaction Document to which it is a party shall prove to be incorrect in any material respect as of the time when the same shall have been made and, in each case if such incorrectness is reasonably able to be remedied, when such incorrectness continues unremedied for more than fifteen (15) days after the first to occur of (i) the date on which receipt of written notice of such incorrectness requiring the same to be remedied shall have been given to failure by the Servicer by from the Borrower, the Facility Administrative Agent, any Lender or Managing Agent or Lender, a Responsible Officer of the Collateral Custodian and or a Responsible Officer of the Backup Servicer or (ii) discovery of such failure by a Responsible Officer of the date on which Servicer;
(c) any merger or consolidation of the Servicer becomes aware thereof; orin breach of Section 7.15;
(ivd) any failure on the part of by the Servicer duly to observe or perform in any material respect any other covenants covenant or agreements agreement of the Servicer set forth in this Agreement or any other Transaction Servicer Basic Document, other than those expressly addressed in another clause of this Section 7.18, to which it is a party as Servicer and, in each case if such failure is reasonably able to be remedied, when such failure continues shall remain unremedied for more than fifteen (15) 30 days after the first to occur earlier of (i) the date on which receipt of written notice of such failure requiring the same to be remedied shall have been given to by the Servicer by from the Borrower, the Facility Administrative Agent, any Managing Agent or Lender or Lender, a Responsible Officer of the Collateral Custodian and or a Responsible Officer of the Backup Servicer or (ii) discovery of such failure by a Responsible Officer of the date on which Servicer;
(e) any representation, warranty or certification made by the Servicer becomes aware thereof; orin any Servicer Basic Document or in any other certificate, information or report delivered pursuant to any Servicer Basic Document shall prove to have been false or incorrect in any material respect when made or deemed made or delivered, and which remains unremedied for 30 days after the earlier of (i) receipt of written notice of such failure by the Servicer from the Administrative Agent, any Lender, a Responsible Officer of the Collateral Custodian or a Responsible Officer of the Backup Servicer or (ii) discovery of such failure by a Responsible Officer of the Servicer;
(v) the Servicer shall fail to service the Transferred Loans in accordance with the Management Manual; or
(vi) the occurrence of any Event of Default; or
(viif) an Insolvency Event shall occur with respect to the Servicer Servicer;
(g) so long as Regional Management is the Servicer, as of the last day of any Collection Period, (i) its Tangible Net Worth is less than $100,000,000 or the Subservicer(ii) its Debt to Tangible Net Worth exceeds 3.0 to 1.0;
(h) a Termination Event shall have occurred and shall not have been waived; or
(viiii) any failure by the Servicer agrees or consents toto observe any covenant, or otherwise permits to occur, any amendment, modification, change, supplement or revision of or to the Management Manual in whole or in part that could reasonably be expected to have a material adverse effect upon the Transferred Loans or interest of any Lender, without the prior written consent of the Facility Agent; or
(ix) the Servicer or Subservicer shall be in (A) default in the payment of any Indebtedness in an individual or aggregate principal amount (or having a facility amount) in excess of (1) in the case of the Servicer, $25,000,000 {B2297203; 11} - 62 - or (2) in the case of the Subservicer, $1,000,000 beyond the period of grace, if any, provided in the instrument condition or agreement under which such Indebtedness was created; or (B) default in Section 6.04(h). During the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, with the giving of notice if required, any such Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its stated maturity, or to cause the termination of any related lending commitment prior to the stated termination date thereof (any applicable grace period having expired); or
(x) (A) a (x) final judgment for the payment of money in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $1,000,000 (individually or in the aggregate) or (y) final non-appealable judgment for the payment of money in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $2,500,000 individually shall have been rendered against the Servicer or the Subservicer by a court of competent jurisdiction, and such judgment, decree or order shall continue unsatisfied and in effect for any period of 30 consecutive days without a stay of execution, or (B) the Servicer or Subservicer shall have made payments of amounts in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $1,000,000 in settlement of any litigation, provided that any judgment rendered against the Subservicer shall be deemed a judgment rendered against the Servicer for purposes of this clause (x) if the Servicer shall satisfy such judgment from its own funds by reason of an indemnification obligation; or
(xi) the Tangible Net Worth of the Servicer at the end continuance of any of the Servicer’s fiscal quarters shall be less than the Minimum Tangible Net Worth; or
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or the Subservicer; or
(xiii) any Change-in-Control of the initial Servicer or the Subservicer occurs without the prior written consent of the Borrower and the Facility Agent; or
(xiv) the Advisory Agreement shall be terminated, whether by action of either party thereto, by operation of law or by reason of its failure to be renewed, or otherwise the Advisory Agreement shall cease to be in full force and effect; or the Advisory Agreement shall have been amended or otherwise modified, without the prior written consent of the Facility Agent, in a manner that might (in the reasonable judgment of the Facility Agent) have a Material Adverse Effect; or PCM shall cease to be the adviser under the Advisory Agreement; {B2297203; 11} - 63 - thenforegoing, notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events Event shall not have been remedied within three Business Days or, if a any applicable cure period is applicable thereto, within three Business days following or waived in writing by the expiration of such cure periodAdministrative Agent and each Lender, the Facility Agent may, or at the direction of the Required Lenders shallAdministrative Agent, by written notice to the Servicer (with a copy to the Collateral Custodian, the Account Bank and the Backup Servicer Servicer) (each, a “Servicer Termination Notice”), subject to the provisions of Section 7.19, may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer in accordance with the Priority of Payments.
Appears in 1 contract
Servicer Termination Events. If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing on any daycontinuing:
(ia) any failure by the Servicer to make any payment, transfer or deposit as required by this Agreement andor any other Transaction Document, except with respect other than any such failure resulting from an administrative or technical error of the Servicer in the amount so paid, transferred or deposited; provided that within one (1) Business Day after the Servicer becomes aware that, as a result of an administrative or technical error of the Servicer, any amount previously paid, transferred or deposited by the Servicer was less than the amount required to paymentsbe paid, transferred or deposited by the Servicer, the Servicer pays, transfers or deposits required in connection with the occurrence amount of the Scheduled Maturity Date, such failure shall have continued without cure for a period of two Business Days; or {B2297203; 11} - 61 -shortfall;
(iib) any failure by the Servicer to give instructions or notice to the Borrower, Deal Agent or any Lender or Managing Agent and/or the Facility Agent as required by this Agreement or any other Transaction Document, or to deliver any Required Reports required Monthly Report or other required reports hereunder on or before the date occurring three two (2) Business Days after the date such instructionsinstruction, notice or report is required to be made or given, as the case may be, under the terms of this Agreement; orAgreement or the relevant Transaction Document;
(iii) any representation or warranty made or deemed made by the Servicer hereunder or under any other Transaction Document to which it is a party shall prove to be incorrect in any material respect as of the time when the same shall have been made and, in each case if such incorrectness is reasonably able to be remedied, when such incorrectness continues unremedied for more than fifteen (15) days after the first to occur of (i) the date on which written notice of such incorrectness requiring the same to be remedied shall have been given to the Servicer by the Borrower, the Facility Agent, any Lender or Managing Agent or the Collateral Custodian and (ii) the date on which the Servicer becomes aware thereof; or
(ivc) 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 Agreement or any the other Transaction Document, Documents (other than those expressly addressed as set forth in another clause of this Section 7.18, (a) or (b) above) to which it the Servicer is a party as party, which continues unremedied for a period of ten (10) days;
(d) any material representation, warranty or certification made by the Servicer andin any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect when made, in each case if such failure is reasonably able to be remedied, when such failure which continues unremedied for more than fifteen thirty (1530) days after (or a longer period, not in excess of sixty (60) days, as may be reasonably necessary to remedy such default, if the first to occur default is capable of remedy within sixty (i60) days or less and the date on which written notice of such failure requiring the same to be remedied shall have been given Servicer delivers an Officer’s Certificate to the Servicer by the Borrower, the Facility Agent, any Deal Agent and each Managing Agent to the effect that it has commenced, or Lender or will promptly commence and diligently pursue, all reasonable efforts to remedy the Collateral Custodian and (ii) the date on which the Servicer becomes aware thereof; ordefault);
(v) the Servicer shall fail to service the Transferred Loans in accordance with the Management Manual; or
(vi) the occurrence of any Event of Default; or
(viie) an Insolvency Event shall occur with respect to the Servicer or the Subservicer; orServicer;
(viiif) the Servicer agrees or consents to, or otherwise permits to occur, any amendment, modification, change, supplement or revision of or to the Management Manual in whole or in part that could reasonably be expected to have a material adverse effect upon the Transferred Loans or interest of any Lender, without the prior written consent of the Facility Agent; or
(ix) the Servicer or Subservicer shall be in (A) default in the payment of any Indebtedness in an individual or aggregate principal amount (or having a facility amount) in excess of (1) in the case of if Credit Acceptance is the Servicer, $25,000,000 {B2297203; 11} - 62 - or the Servicer breaches any Financial Covenant;
(2g) in any financial information related to the case of Collateral reasonably requested by the SubservicerDeal Agent, $1,000,000 beyond any Managing Agent, the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or (B) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto Collateral Agent or any other event shall occur or condition exist, the effect of which default or other event or condition Lender as provided herein is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, with the giving of notice if required, any such Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its stated maturity, or to cause the termination of any related lending commitment prior to the stated termination date thereof (any applicable grace period having expired); ornot reasonably provided as requested;
(xh) (A) a (x) the rendering against the Servicer of one or more final judgment judgments, decrees or orders for the payment of money in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $1,000,000 (individually or 15,000,000 in the aggregate) or (y) final non-appealable judgment for the payment of money in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $2,500,000 individually shall have been rendered against the Servicer or the Subservicer by a court of competent jurisdiction, and the continuance of such judgment, decree or order shall continue unsatisfied and in effect for any period of 30 more than sixty (60) consecutive days without a stay of execution;
(i) failure by the Servicer to pay any principal of or premium or interest on any indebtedness in an aggregate outstanding principal amount of $15,000,000 or more (“Material Debt”), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material Debt; or any other default under any agreement or instrument relating to any Material Debt 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 Material Debt; or any such Material Debt shall be declared to be due and payable or required to be prepaid (Bother than by a regularly scheduled required prepayment) prior to the stated maturity thereof;
(j) any change in the control of the Servicer that takes the form of either a merger or consolidation in which the Servicer is not the surviving entity;
(k) a Material Adverse Effect shall have occurred;
(l) a Termination Event shall have occurred and such Termination Event has not been waived by the Managing Agents;
(m) the Servicer or Subservicer shall have made payments of amounts in excess of (1) in the case occurrence of the Servicer, $25,000,000 or thirtieth (230th) in day after the case end of the Subservicer, $1,000,000 fiscal quarter in settlement which a breach of any litigationcovenant set forth in Sections 7.5, provided that any judgment rendered against 7.6 and 7.7 of the Subservicer Credit Agreement shall be deemed a judgment rendered against occur unless prior to such date, such breach is cured or waived by the Servicer for purposes of this clause Deal Agent (x) if acting at the Servicer shall satisfy such judgment from its own funds by reason of an indemnification obligationdirection, or with the consent of, the Required Lenders acting in their respective sole discretion); or
(xin) if Credit Acceptance is the Servicer, the Servicer shall have a Tangible Net Worth of the Servicer at less than $200,000,000 as of the end of any of the ServicerCredit Acceptance’s most recent fiscal quarters shall be less than the Minimum Tangible Net Worth; or
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or the Subservicer; or
(xiii) any Change-in-Control of the initial Servicer or the Subservicer occurs without the prior written consent of the Borrower and the Facility Agent; or
(xiv) the Advisory Agreement shall be terminated, whether by action of either party thereto, by operation of law or by reason of its failure to be renewed, or otherwise the Advisory Agreement shall cease to be in full force and effect; or the Advisory Agreement shall have been amended or otherwise modified, without the prior written consent of the Facility Agent, in a manner that might (in the reasonable judgment of the Facility Agent) have a Material Adverse Effect; or PCM shall cease to be the adviser under the Advisory Agreement; {B2297203; 11} - 63 - then, quarter. then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events Event shall not have been remedied remedied, within three Business Days or, if a any applicable cure period is applicable thereto, within three Business days following prior to the expiration date of such cure periodthe Servicer Termination Notice (defined below), the Facility Deal Agent may, with the consent of the Required Lenders, or shall, at the direction of the Required Lenders shallLenders, by written notice to the Servicer and (with a copy to the Backup Servicer Servicer) (a “Servicer Termination Notice”), subject to the provisions of Section 7.19, terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer in accordance with the Priority of Payments.
Appears in 1 contract
Samples: Loan and Security Agreement (Credit Acceptance Corp)
Servicer Termination Events. If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing on any dayand remains unremedied for more than thirty (30) days (or such other amount of time as specifically listed below) after knowledge by or written notice to the Servicer:
(ia) any failure by the Servicer to make any payment, transfer or deposit as required by this Agreement andor any other Transaction Document, except with respect other than any such failure resulting from an administrative or technical error of the Servicer in the amount so paid, transferred or deposited; provided that within one (1) Business Day after the Servicer receives notice or becomes aware that, as a result of an administrative or technical error of the Servicer, any amount previously paid, transferred or deposited by the Servicer was less than the amount required to paymentsbe paid, transferred or deposited by the Servicer, the Servicer pays, transfers or deposits required in connection with the occurrence amount of the Scheduled Maturity Date, such failure shall have continued without cure for a period of two Business Days; or {B2297203; 11} - 61 -shortfall;
(iib) any failure by the Servicer (only with respect to Credit Acceptance) to give instructions or notice to the Borrower, any Lender or Managing Agent and/or the Facility Deal Agent as required by this Agreement or any other Transaction Document, or to deliver any Required Reports required Monthly Report or other required reports hereunder on or before the date occurring three two (2) Business Days after the date such instructionsinstruction, notice or report is required to be made or given, as the case may be, under the terms of this Agreement; orAgreement or the relevant Transaction Document;
(iii) any representation or warranty made or deemed made by the Servicer hereunder or under any other Transaction Document to which it is a party shall prove to be incorrect in any material respect as of the time when the same shall have been made and, in each case if such incorrectness is reasonably able to be remedied, when such incorrectness continues unremedied for more than fifteen (15) days after the first to occur of (i) the date on which written notice of such incorrectness requiring the same to be remedied shall have been given to the Servicer by the Borrower, the Facility Agent, any Lender or Managing Agent or the Collateral Custodian and (ii) the date on which the Servicer becomes aware thereof; or
(ivc) 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 Agreement or any the other Transaction Document, Documents (other than those expressly addressed as set forth in another clause of this Section 7.18, clauses (a) or (b) above) to which it the Servicer is a party as Servicer andparty, in each case if which such failure is reasonably able results in a Material Adverse Effect and continues unremedied for a period of forty-five (45) days;
(d) any material representation, warranty or certification made by the Servicer (only with respect to be remediedCredit Acceptance) in any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect when made, when such failure which continues unremedied for more than fifteen forty-five (1545) days after (or a longer period, not in excess of ninety (90) days, as may be reasonably necessary to remedy such default, if the first to occur default is capable of remedy within ninety (i90) days or less and the date on which written notice of such failure requiring the same to be remedied shall have been given Servicer delivers an Officer’s Certificate to the Servicer by Deal Agent to the Borrowereffect that it has commenced, or will promptly commence and diligently pursue, all reasonable efforts to remedy the Facility Agent, any Managing Agent or Lender or the Collateral Custodian and (ii) the date on which the Servicer becomes aware thereof; ordefault);
(v) the Servicer shall fail to service the Transferred Loans in accordance with the Management Manual; or
(vi) the occurrence of any Event of Default; or
(viie) an Insolvency Event shall occur with respect to the Servicer or the Subservicer; orServicer;
(viiif) the Servicer agrees or consents to, or otherwise permits to occur, any amendment, modification, change, supplement or revision of or to the Management Manual in whole or in part that could reasonably be expected to have a material adverse effect upon the Transferred Loans or interest of any Lender, without the prior written consent of the Facility Agent; or
(ix) the Servicer or Subservicer shall be in (A) default in the payment of any Indebtedness in an individual or aggregate principal amount (or having a facility amount) in excess of (1) in the case delegation of the Servicer, $25,000,000 {B2297203; 11} - 62 - or ’s duties that is not permitted by Section 7.1;
(2g) in any information related to the case of Collateral reasonably requested by the Subservicer, $1,000,000 beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or (B) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto or any other event shall occur or condition existDeal Agent, the effect of which default Collateral Agent or other event or condition the Lender as provided herein is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, with the giving of notice if required, any such Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its stated maturity, or to cause the termination of any related lending commitment prior to the stated termination date thereof (any applicable grace period having expired); ornot reasonably provided as requested;
(xh) (A) a (x) the rendering against the Servicer of one or more final judgment judgments, decrees or orders for the payment of money in excess of United States $50,000,000 (1in the event SST is Successor Servicer, the amount shall be $10,000,000) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $1,000,000 (individually or in the aggregate) or (y) final non-appealable judgment for the payment of money in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $2,500,000 individually shall have been rendered against the Servicer or the Subservicer by a court of competent jurisdiction, and the continuance of such judgment, decree or order shall continue unsatisfied and in effect for any period of 30 more than 60 consecutive days without a stay of execution, or ;
(Bi) the Servicer shall fail to pay any principal of or Subservicer premium or interest on any indebtedness in an aggregate outstanding principal amount of $50,000,000 (in the event SST is Successor Servicer, the amount shall be $10,000,000) or more (“Material Debt”), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material Debt; or any other default under any agreement or instrument relating to any Material Debt 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 Material Debt; or any such Material 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;
(j) any change in the control of Credit Acceptance that takes the form of either a merger or consolidation in which Credit Acceptance is not the surviving entity;
(k) a Material Adverse Effect shall have made payments of amounts in excess of occurred;
(1l) in the case of the if Credit Acceptance is Servicer, $25,000,000 or (2) in a Termination Event shall have occurred and such Termination Event has not been waived by the case of the Subservicer, $1,000,000 in settlement of any litigation, provided that any judgment rendered against the Subservicer shall be deemed a judgment rendered against the Servicer for purposes of this clause (x) if the Servicer shall satisfy such judgment from its own funds by reason of an indemnification obligation; or
(xi) the Tangible Net Worth of the Servicer at the end of any of the Servicer’s fiscal quarters shall be less than the Minimum Tangible Net Worth; or
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or the Subservicer; or
(xiii) any Change-in-Control of the initial Servicer or the Subservicer occurs without the prior written consent of the Borrower and the Facility Deal Agent; or
(xivm) either (1) on a Consolidated (as defined in the Advisory Agreement shall be terminatedCredit Agreement) basis, the Servicer fails to maintain, as of the end of each fiscal period as shown in the most recent financial statement delivered by the Servicer pursuant to Section 5.1(k)(ii) and Section 5.1(k)(iii), as applicable, a Fixed Charge Coverage Ratio (as defined in the Credit Agreement) of not less than 2.0 to 1.0, or (2) on a Consolidated (as defined in the Credit Agreement) basis, the Servicer fails to maintain, as of the end of each fiscal period as shown in the most recent financial statement delivered by the Servicer pursuant to Section 5.1(k)(ii) and Section 5.1(k)(iii), as applicable, a ratio of Consolidated Funded Debt (as defined in the Credit Agreement) as of such date minus Unrestricted Cash (as defined in the Credit Agreement) as of such date (including in the calculation thereof, for purposes hereof, all Funded Debt (as defined in the Credit Agreement) incurred by a Special Purpose Subsidiary (as defined in the Credit Agreement), whether by action of either party thereto, by operation of law or by reason of its failure not included therein under GAAP) to be renewed, or otherwise the Advisory Agreement shall cease to be in full force and effect; or the Advisory Agreement shall have been amended or otherwise modified, without the prior written consent of the Facility Agent, in a manner that might Servicer’s Consolidated Tangible Net Worth (as defined in the reasonable judgment Credit Agreement) as of the Facility Agent) have a Material Adverse Effectsuch date equal to or less than 5.60 to 1.0; or PCM shall cease to be the adviser under the Advisory Agreement; {B2297203; 11} - 63 - then, then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events Event shall not have been remedied within three Business Days or, if a any applicable cure period is applicable thereto, within three Business days following prior to the expiration delivery of such cure periodthe Servicer Termination Notice (defined below), the Facility Deal Agent may, or at the direction of the Required Lenders shallLender, by written notice to the Servicer and (with a copy to the Backup Servicer Servicer) (a “Servicer Termination Notice”), subject to the provisions of Section 7.19, terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer in accordance with the Priority of Payments.
Appears in 1 contract
Samples: Loan and Security Agreement (Credit Acceptance Corp)
Servicer Termination Events. If The occurrence and continuance of any one of the following events (shall constitute a “Servicer Termination Event”) shall occur and be continuing on any day” hereunder:
(ia) the occurrence of a Level III Trigger Event;
(b) any failure by the Servicer to (i) deliver any Collections or (ii) make any payment, transfer or deposit deposit, in each case as required by this Agreement or any other Servicer Basic Document and, except with respect to paymentsin each case, transfers which failure shall continue unremedied for two Business Days after (A) receipt of written notice of such failure by the Servicer from the Administrative Agent, any Agent, any Lender or deposits required in connection with the occurrence Account Bank or (iiB) discovery of such failure by a Responsible Officer of the Scheduled Maturity Date, such failure shall have continued without cure for a period of two Business Days; or {B2297203; 11} - 61 -Servicer;
(iic) any failure by the Servicer to give instructions or notice deliver to the BorrowerAdministrative Agent, any Lender each Agent, each Lender, the Image File Custodian or Managing Agent and/or the Facility Agent as Backup Servicer a Monthly Report and a Monthly Loan Tape when required by this Agreement or to deliver any Required Reports hereunder on or before the date occurring three that shall continue unremedied for two Business Days after the date such instructions, notice or report is required to be made or given, as the case may be, under the terms of this Agreement; or
(iii) any representation or warranty made or deemed made by the Servicer hereunder or under any other Transaction Document to which it is a party shall prove to be incorrect in any material respect as of the time when the same shall have been made and, in each case if such incorrectness is reasonably able to be remedied, when such incorrectness continues unremedied for more than fifteen (15) days after the first to occur of (i) the date on which receipt of written notice of such incorrectness requiring the same to be remedied shall have been given to failure by the Servicer by from the Borrower, the Facility Administrative Agent, any Lender or Managing Agent Agent, any Lender, the Image File Custodian or the Collateral Custodian and Backup Servicer or (ii) discovery of such failure by a Responsible Officer of the date on which Servicer;
(d) any merger or consolidation of the Servicer becomes aware thereof; orin breach of Section 7.15;
(ive) any failure on the part of by the Servicer duly to observe or perform in any material respect any other covenants covenant or agreements agreement of the Servicer set forth in this Agreement or any other Transaction Servicer Basic Document, other than those expressly addressed in another clause of this Section 7.18, to which it is a party as Servicer and, in each case if such failure is reasonably able to be remedied, when such failure continues shall remain unremedied for more than fifteen (15) 30 days after the first to occur earlier of (i) the date on which receipt of written notice of such failure requiring the same to be remedied shall have been given to by the Servicer by from the Borrower, the Facility Administrative Agent, any Managing Agent or Lender Agent, any Lender, the Image File Custodian or the Collateral Custodian and Backup Servicer or (ii) discovery of such failure by a Responsible Officer of the date on which Servicer;
(f) any representation, warranty or certification made by the Servicer becomes aware thereof; orin any Servicer Basic Document or in any other certificate, information or report delivered pursuant to any Servicer Basic Document shall prove to have been false or incorrect in any material respect when made or deemed made or delivered, and which remains unremedied for 30 days after the earlier of (i) receipt of written notice of such failure by the Servicer from the Administrative Agent, any Agent, any Lender, the Image File Custodian or the Backup Servicer or (ii) discovery of such failure by a Responsible Officer of the Servicer;
(v) the Servicer shall fail to service the Transferred Loans in accordance with the Management Manual; or
(vi) the occurrence of any Event of Default; or
(viig) an Insolvency Event shall occur with respect to the Servicer or the SubservicerServicer;
(h) an Event of Default shall have occurred and shall not have been waived; or
(viiii) any failure by the Servicer agrees or consents toto observe any covenant, or otherwise permits to occur, any amendment, modification, change, supplement or revision of or to the Management Manual in whole or in part that could reasonably be expected to have a material adverse effect upon the Transferred Loans or interest of any Lender, without the prior written consent of the Facility Agent; or
(ix) the Servicer or Subservicer shall be in (A) default in the payment of any Indebtedness in an individual or aggregate principal amount (or having a facility amount) in excess of (1) in the case of the Servicer, $25,000,000 {B2297203; 11} - 62 - or (2) in the case of the Subservicer, $1,000,000 beyond the period of grace, if any, provided in the instrument condition or agreement under which such Indebtedness was created; or (B) default in Section 6.05(h). During the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, with the giving of notice if required, any such Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its stated maturity, or to cause the termination of any related lending commitment prior to the stated termination date thereof (any applicable grace period having expired); or
(x) (A) a (x) final judgment for the payment of money in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $1,000,000 (individually or in the aggregate) or (y) final non-appealable judgment for the payment of money in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $2,500,000 individually shall have been rendered against the Servicer or the Subservicer by a court of competent jurisdiction, and such judgment, decree or order shall continue unsatisfied and in effect for any period of 30 consecutive days without a stay of execution, or (B) the Servicer or Subservicer shall have made payments of amounts in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $1,000,000 in settlement of any litigation, provided that any judgment rendered against the Subservicer shall be deemed a judgment rendered against the Servicer for purposes of this clause (x) if the Servicer shall satisfy such judgment from its own funds by reason of an indemnification obligation; or
(xi) the Tangible Net Worth of the Servicer at the end continuance of any of the Servicer’s fiscal quarters shall be less than the Minimum Tangible Net Worth; or
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or the Subservicer; or
(xiii) any Change-in-Control of the initial Servicer or the Subservicer occurs without the prior written consent of the Borrower and the Facility Agent; or
(xiv) the Advisory Agreement shall be terminated, whether by action of either party thereto, by operation of law or by reason of its failure to be renewed, or otherwise the Advisory Agreement shall cease to be in full force and effect; or the Advisory Agreement shall have been amended or otherwise modified, without the prior written consent of the Facility Agent, in a manner that might (in the reasonable judgment of the Facility Agent) have a Material Adverse Effect; or PCM shall cease to be the adviser under the Advisory Agreement; {B2297203; 11} - 63 - thenforegoing, notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events Event shall not have been remedied within three Business Days or, if a any applicable cure period is applicable thereto, within three Business days following or waived in writing by the expiration of such cure periodAdministrative Agent and the Required Lenders, the Facility Administrative Agent may, or acting at the direction of the Required Lenders shallLenders, by written notice to the Servicer (with a copy to each Agent, Hedge Counterparty, the Image File Custodian, the Account Bank and the Backup Servicer Servicer) (each, a “Servicer Termination Notice”), subject to the provisions of Section 7.19, shall terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and under the 2017-1A SUBI Servicing Agreement. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer in accordance with the Priority of Payments.
Appears in 1 contract
Servicer Termination Events. If any The occurrence or existence of one or more of the following events (or facts shall constitute a “Servicer Termination Event”) shall occur and be continuing on any day:
(ia) any failure by of the Servicer to make any payment, transfer pay or deposit as required any amount to be paid or deposited by it under this Agreement and(including any failure to remit Free Cash Flow to the Collection Account in accordance with Section 6.4) and any failure of Servicer, except or compromise of Servicer’s ability to, collect payments from Obligors (including, without limitation, software, hardware or other problems with respect to Servicer’s platform for collecting payments, transfers or deposits required in connection with the occurrence but excluding non-payments by fault of the Scheduled Maturity DateObligors), and such failure shall have continued without cure continues unremedied for a period of two Business Days; or {B2297203; 11} - 61 -
(ii) any failure by the Servicer to give instructions or notice to the Borrower, any Lender or Managing Agent and/or the Facility Agent as required by this Agreement or to deliver any Required Reports hereunder on or before the date occurring three 3 Business Days after the date such instructions, notice or report is required to be made or given, as the case may be, under the terms earlier of this Agreement; or
(iii) any representation or warranty made or deemed made by the Servicer hereunder or under any other Transaction Document to which it is a party shall prove to be incorrect in any material respect as of the time when the same shall have been made and, in each case if such incorrectness is reasonably able to be remedied, when such incorrectness continues unremedied for more than fifteen (15) days after the first to occur of (i) the date on which written notice of such incorrectness requiring the same to be remedied shall have been given to the Servicer by the Borrower, the Facility Agent, any Lender or Managing Agent or the Collateral Custodian and (ii) the date on which the Servicer receives notice thereof from the Agent and the date the Servicer becomes aware thereof; or;
(ivb) any withdrawal from or other use of funds on deposit in the Collection Account by the Servicer, other than as expressly permitted hereunder;
(c) any failure on the part of the Servicer to duly to perform or observe or perform in any material respect any other terms, conditions, covenants or agreements of the Servicer set forth in this Agreement or any other Transaction DocumentAgreement, other than those expressly addressed in another clause of this Section 7.18, to which it is a party as Servicer and, in each case and if such failure is reasonably able to be capable of being remedied, when such failure continues unremedied for more than fifteen (15) days a period of 10 Business Days after the first to occur earlier of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Borrower, the Facility Agent, any Managing Agent or Lender or the Collateral Custodian and (ii) the date on which the Servicer receives notice thereof from the Agent and the date the Servicer becomes aware thereof; or;
(vd) any representation or warranty made or deemed to have been made by the Servicer (or any of its officers) in or pursuant to this Agreement or any document or instrument delivered pursuant hereto proves to have been false, misleading or incorrect in any material respect when made and, if capable of being cured, has not been cured within 3 Business Days after the earlier of the date notice thereof has been delivered to the Servicer and the date the Servicer becomes aware thereof;
(e) the failure by the Servicer to generally pay its debts as they become due, the admission in writing by the Servicer of its inability to pay its debts generally or the making by the Servicer of an assignment for the benefit of its creditors;
(f) any Security Document shall for any reason fail to create a valid and perfected first priority Security Interest (or in the case of TPFM and Servicer, a valid and perfected second priority security interest) in any collateral purported to be covered thereby, or any Security Document shall fail to remain in full force or effect or any action shall be taken to discontinue or to assert the invalidity or unenforceability of any Security Document, or the Servicer shall fail to service comply with any of the Transferred Loans terms or provisions of any Security Document;
(g) the filing by the Servicer of a notice of intention to make a proposal under the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada) or other similar legislation in accordance with the Management Manualapplicable jurisdiction, to some or all of its creditors;
(h) the commencement or filing of a petition, notice or application by or against the Servicer of any proceedings to adjudicate it a bankrupt or insolvent or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any Law of any jurisdiction, whether now or after the date of this Agreement in effect, relating to the dissolution, liquidation or winding up, bankruptcy, insolvency, reorganization of insolvent debtors, arrangement of insolvent debtors, readjustment of debt or moratorium of debts, or to obtain an order for relief by the appointment of a receiver, receiver manager, administrator, inspector, liquidator or trustee or other similar official for it or for any substantial part of its property and, if any such proceeding has been instituted against the Servicer, either such proceeding has not been stayed or dismissed within 45 days or any of the actions sought in such proceeding (including the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official) are granted in whole or in part, or the performance by the Servicer of any act, or the omission to perform any act, that authorizes or indicates its consent to, approval of or acquiescence in, any such proceeding; or
(vii) the occurrence of any Event a Change of Default; or
(vii) an Insolvency Event shall occur with respect to the Servicer or the Subservicer; or
(viii) the Servicer agrees or consents to, or otherwise permits to occur, any amendment, modification, change, supplement or revision of or to the Management Manual in whole or in part that could reasonably be expected to have a material adverse effect upon the Transferred Loans or interest of any Lender, without the prior written consent of the Facility Agent; or
(ix) the Servicer or Subservicer shall be in (A) default in the payment of any Indebtedness in an individual or aggregate principal amount (or having a facility amount) in excess of (1) in the case of the Servicer, $25,000,000 {B2297203; 11} - 62 - or (2) in the case of the Subservicer, $1,000,000 beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or (B) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, with the giving of notice if required, any such Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its stated maturity, or to cause the termination of any related lending commitment prior to the stated termination date thereof (any applicable grace period having expired); or
(x) (A) a (x) final judgment for the payment of money in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $1,000,000 (individually or in the aggregate) or (y) final non-appealable judgment for the payment of money in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $2,500,000 individually shall have been rendered against the Servicer or the Subservicer by a court of competent jurisdiction, and such judgment, decree or order shall continue unsatisfied and in effect for any period of 30 consecutive days without a stay of execution, or (B) the Servicer or Subservicer shall have made payments of amounts in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $1,000,000 in settlement of any litigation, provided that any judgment rendered against the Subservicer shall be deemed a judgment rendered against the Servicer for purposes of this clause (x) if the Servicer shall satisfy such judgment from its own funds by reason of an indemnification obligation; or
(xi) the Tangible Net Worth of the Servicer at the end of any of the Servicer’s fiscal quarters shall be less than the Minimum Tangible Net Worth; or
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or the Subservicer; or
(xiii) any Change-in-Control of the initial Servicer or the Subservicer occurs without the prior written consent of the Borrower and the Facility Agent; or
(xiv) the Advisory Agreement shall be terminated, whether by action of either party thereto, by operation of law or by reason of its failure to be renewed, or otherwise the Advisory Agreement shall cease to be in full force and effect; or the Advisory Agreement shall have been amended or otherwise modified, without the prior written consent of the Facility Agent, in a manner that might (in the reasonable judgment of the Facility Agent) have a Material Adverse Effect; or PCM shall cease to be the adviser under the Advisory Agreement; {B2297203; 11} - 63 - then, notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied within three Business Days or, if a cure period is applicable thereto, within three Business days following the expiration of such cure period, the Facility Agent may, or at the direction of the Required Lenders shall, by written notice to the Servicer and the Backup Servicer (a “Servicer Termination Notice”), subject to the provisions of Section 7.19, terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer in accordance with the Priority of PaymentsControl.
Appears in 1 contract
Samples: Credit Agreement
Servicer Termination Events. If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing on any day:
(i) any failure by the Servicer to make any payment, transfer or deposit as required by this Agreement and, except with respect to payments, transfers or deposits required in connection with the occurrence of the Scheduled Maturity Date, and such failure shall have continued without cure continue for a period of two (2) Business Days; or {B2297203; 11} - 61 -;
(ii) any failure by the Servicer to give instructions or notice to the Borrower, any Lender or Managing Agent and/or the Facility Administrative Agent as required by this Agreement or to deliver any Required Reports hereunder on or before the date occurring three two Business Days after the date such instructions, notice or report is required to be made or given, as the case may be, under the terms of this Agreement; or;
(iii) any representation or warranty made or deemed made by the Servicer hereunder or under any other Transaction Document to which it is a party shall prove to be incorrect in any material respect as of the time when the same shall have been made and, in each case if such incorrectness is reasonably able to be remedied, when such incorrectness continues unremedied for more than fifteen (15) days after the first to occur of (i) the date on which written notice of such incorrectness requiring the same to be remedied shall have been given to the Servicer by the Borrower, the Facility Agent, any Lender or Managing Agent or the Collateral Custodian and (ii) the date on which the Servicer becomes aware thereof; or
(iv) 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 Agreement or any other Transaction Document, other than those expressly addressed in another clause of this Section 7.18, Document to which it is a party as Servicer and, in each case if such failure is reasonably able to be remedied, when such failure that continues unremedied for more than a period of fifteen (15) days after the first to occur of (A) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Managing Agent or the Borrower and (B) the date on which the Servicer becomes or reasonably should have become aware thereof;
(iv) any representation, warranty or certification made by the Servicer in this 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 such failure, if susceptible to a cure, shall continue unremedied for a period of fifteen (15) days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Borrower, the Facility Administrative Agent, any Managing Agent or Lender or the Collateral Custodian Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof; or;
(v) the Servicer shall fail to service the Transferred Loans in accordance with the Management Manual; orCredit and Collection Policy;
(vi) the occurrence of any Event of Default; or
(vii) an Insolvency Event shall occur with respect to the Servicer or the Subservicer; orServicer;
(viiivii) the Servicer agrees or consents to, or otherwise permits to occur, any amendment, modification, change, supplement or revision of or to materially alter the Management Manual in whole or in part that could reasonably be expected to have a material adverse effect upon the Transferred Loans or interest of any Lender, Credit and Collection Policy without the prior written consent of the Facility Agent; orRequired Lenders;
(viii) any financial or asset information reasonably requested by the Administrative Agent or any Managing Agent as provided herein is not provided as requested within five (5) Business Days (or such longer period as the Administrative Agent or such Managing Agent may consent to) of the receipt by the Servicer of such request;
(ix) the rendering against the Servicer of a final judgment, decree or Subservicer shall be in (A) default in the payment of any Indebtedness in an individual or aggregate principal amount (or having a facility amount) in excess of (1) in the case of the Servicer, $25,000,000 {B2297203; 11} - 62 - or (2) in the case of the Subservicer, $1,000,000 beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or (B) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, with the giving of notice if required, any such Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its stated maturity, or to cause the termination of any related lending commitment prior to the stated termination date thereof (any applicable grace period having expired); or
(x) (A) a (x) final judgment order for the payment of money in excess of (1) in the case of the Servicer, U.S. $25,000,000 or (2) in the case of the Subservicer, $1,000,000 5,000,000 (individually or in the aggregate) or (y) final non-appealable judgment for and the payment continuance of money in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $2,500,000 individually shall have been rendered against the Servicer or the Subservicer by a court of competent jurisdiction, and such judgment, decree or order shall continue unsatisfied and in effect for any period of 30 consecutive days without a stay of execution, or (B) the Servicer or Subservicer shall have made payments of amounts in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $1,000,000 in settlement of any litigation, provided that any judgment rendered against the Subservicer shall be deemed a judgment rendered against the Servicer for purposes of this clause ;
(x) the failure of the Performance Guarantor 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 that would permit acceleration of such recourse debt or other obligations if the Servicer shall satisfy such judgment from its own funds by reason of an indemnification obligation; orevent or condition has not been waived;
(xi) the Tangible Net Worth any Guarantor Event of the Servicer at the end of any of the Servicer’s fiscal quarters Default shall be less than the Minimum Tangible Net Worth; oroccur;
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or a material adverse change occurs with regard to the Subservicer; orcollectibility of the Transferred Loans, taken as a whole;
(xiii) any Change-in-Control of the initial Servicer or the Subservicer occurs is made without the prior written consent of the Borrower and the Facility Administrative Agent; or;
(xiv) the Advisory Agreement Performance Guarantor shall fail to maintain a minimum Net Worth equal to the sum of (i) $200,000,000 plus (ii) 50% of any equity and Subordinated Debt issued by the Performance Guarantor after the Amendment No. 1 Effective Date minus (iii) 50% of any equity and Subordinated Debt retired or redeemed by the Performance Guarantor after the Amendment No. 1 Effective Date; provided that, in no event shall the minimum Net Worth be less than $200,000,000;
(xv) the Performance Guarantor shall fail to satisfy the RIC/BDC Requirements;
(xvi) the Performance Guarantor shall fail to maintain “asset coverage” (as defined in and determined pursuant to Section 18 of the 0000 Xxx) with respect to its “senior securities representing indebtedness” (as defined in Section 18 of the 0000 Xxx) of at least 200% (or such higher percentage as may be set forth in Section 18 of the 1940 Act); provided, that for purposes of testing compliance with this Section 7.18(xvi) the impact of the election of ASC 825 or similar accounting guideline with respect to determining the fair value of the debt of the Performance Guarantor on a consolidated basis shall be terminatedexcluded (for avoidance of doubt, whether by action the intent of either party thereto, by operation this language is to cause the debt of law or by reason of its failure the Performance Guarantor to be renewedvalued at par value rather than fair value)); or
(xvii) the Performance Guarantor shall pay any cash dividends; provided that the Performance Guarantor shall be permitted to pay cash dividends if the Servicer shall have caused the Performance Guarantor to have delivered a certificate to the Administrative Agent, or otherwise substantially in the Advisory Agreement shall cease form of Exhibit G hereto, at least 10 Business Days prior to the making of any such cash dividend to the effect that:
(A) the amount of the declared dividend has been determined in good faith by the Board of Directors of the Performance Guarantor on the basis of the most current financial projections of the Performance Guarantor then available for the Related Period (as defined in Exhibit G hereof);
(B) the amount of the declared dividend does not exceed the sum of (i) the net investment income and the net capital gain projected to be realized by the Performance Guarantor for the Related Period based on the financial projections referred to in full force clause (A) above, and effect; or (ii) the Advisory Agreement shall have amounts deemed by the Performance Guarantor to be considered as having been amended or otherwise modified, without paid during the prior written consent year in accordance with Section 855(a) of the Facility AgentCode (together clauses (i) and (ii) comprising the “Projected Available Amount”); and
(C) to the extent the declared dividend referred to in clause (B) above exceeds the sum of (i) the net investment income and the net capital gain actually realized by the Performance Guarantor for the Related Period, plus (ii) the amounts deemed by the Performance Guarantor to be considered as having been paid during the prior year in a manner that might (in the reasonable judgment accordance with Section 855(a) of the Facility Agent) have a Material Adverse EffectCode (the “Excess Payment”); or PCM shall cease then the proposed dividend to be declared by the adviser under Performance Guarantor for the Advisory Agreementimmediately ensuing Related Period shall be reduced by any positive amount resulting from the following calculation: (x) the ensuing Related Period’s proposed declared dividend plus the Excess Payment minus (y) the ensuing Related Period’s Projected Available Amount; {B2297203; 11} - 63 - then, notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied within three Business Days or, if a cure period is applicable thereto, within three Business days following at the expiration of such any applicable cure period, the Facility Administrative Agent may, or at the direction of the Required Lenders shall, by written notice to the Servicer and the Backup Servicer (a “Servicer Termination Notice”), subject to the provisions of Section 7.19, either (i) terminate all of the rights and obligations of the Servicer as Servicer under this AgreementAgreement or (ii) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and simultaneously reappoint the Servicer for a period not to exceed one month (subject to renewal at the sole discretion of the Administrative Agent, acting at the direction of the Required Lenders), at the expiration of which appointment the Servicer’s rights and obligations hereunder shall automatically terminate without further action on the part of any party hereto. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer in accordance with the Priority of PaymentsServicer.
Appears in 1 contract
Samples: Fifth Amended and Restated Credit Agreement (Gladstone Investment Corporation\de)
Servicer Termination Events. If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing on any day:
(i) any failure by the Servicer to make any payment, transfer or deposit as required by this Agreement and, except with respect to payments, transfers or deposits required in connection with the occurrence of the Scheduled Maturity Date, and such failure shall have continued without cure continue for a period of two (2) Business Days; or {B2297203; 11} - 61 -;
(ii) any failure by the Servicer to give instructions or notice to the Borrower, any Lender or Managing Agent and/or the Facility Administrative Agent as required by this Agreement or to deliver any Required Reports hereunder on or before the date occurring three two Business Days after the date such instructions, notice or report is required to be made or given, as the case may be, under the terms of this Agreement; or;
(iii) any representation or warranty made or deemed made by the Servicer hereunder or under any other Transaction Document to which it is a party shall prove to be incorrect in any material respect as of the time when the same shall have been made and, in each case if such incorrectness is reasonably able to be remedied, when such incorrectness continues unremedied for more than fifteen (15) days after the first to occur of (i) the date on which written notice of such incorrectness requiring the same to be remedied shall have been given to the Servicer by the Borrower, the Facility Agent, any Lender or Managing Agent or the Collateral Custodian and (ii) the date on which the Servicer becomes aware thereof; or
(iv) 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 Agreement or any other Transaction Document, other than those expressly addressed in another clause of this Section 7.18, Document to which it is a party as Servicer and, in each case if such failure is reasonably able to be remedied, when such failure that continues unremedied for more than a period of fifteen (15) days after the first to occur of (A) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Managing Agent or the Borrower and (B) the date on which the Servicer becomes or reasonably should have become aware thereof;
(iv) any representation, warranty or certification made by the Servicer in this 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 such failure, if susceptible to a cure, shall continue unremedied for a period of fifteen (15) days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Borrower, the Facility Administrative Agent, any Managing Agent or Lender or the Collateral Custodian Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof; or;
(v) the Servicer shall fail to service the Transferred Loans in accordance with the Management Manual; orCredit and Collection Policy;
(vi) the occurrence of any Event of Default; or
(vii) an Insolvency Event shall occur with respect to the Servicer or the Subservicer; orServicer;
(viiivii) the Servicer agrees or consents to, or otherwise permits to occur, any amendment, modification, change, supplement or revision of or to materially alter the Management Manual in whole or in part that could reasonably be expected to have a material adverse effect upon the Transferred Loans or interest of any Lender, Credit and Collection Policy without the prior written consent of the Facility Agent; orRequired Lenders;
(viii) any financial or asset information reasonably requested by the Administrative Agent or any Managing Agent as provided herein is not provided as requested within five (5) Business Days (or such longer period as the Administrative Agent or such Managing Agent may consent to) of the receipt by the Servicer of such request;
(ix) the rendering against the Servicer of a final judgment, decree or Subservicer shall be in (A) default in the payment of any Indebtedness in an individual or aggregate principal amount (or having a facility amount) in excess of (1) in the case of the Servicer, $25,000,000 {B2297203; 11} - 62 - or (2) in the case of the Subservicer, $1,000,000 beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or (B) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, with the giving of notice if required, any such Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its stated maturity, or to cause the termination of any related lending commitment prior to the stated termination date thereof (any applicable grace period having expired); or
(x) (A) a (x) final judgment order for the payment of money in excess of (1) in the case of the Servicer, U.S. $25,000,000 or (2) in the case of the Subservicer, $1,000,000 5,000,000 (individually or in the aggregate) or (y) final non-appealable judgment for and the payment continuance of money in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $2,500,000 individually shall have been rendered against the Servicer or the Subservicer by a court of competent jurisdiction, and such judgment, decree or order shall continue unsatisfied and in effect for any period of 30 consecutive days without a stay of execution, or (B) the Servicer or Subservicer shall have made payments of amounts in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $1,000,000 in settlement of any litigation, provided that any judgment rendered against the Subservicer shall be deemed a judgment rendered against the Servicer for purposes of this clause ;
(x) the failure of the Performance Guarantor 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 that would permit acceleration of such recourse debt or other obligations if the Servicer shall satisfy such judgment from its own funds by reason of an indemnification obligation; orevent or condition has not been waived;
(xi) the Tangible Net Worth any Guarantor Event of the Servicer at the end of any of the Servicer’s fiscal quarters Default shall be less than the Minimum Tangible Net Worth; oroccur;
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or a material adverse change occurs with regard to the Subservicer; orcollectibility of the Transferred Loans, taken as a whole;
(xiii) any Change-in-Control of the initial Servicer or the Subservicer occurs is made without the prior written consent of the Borrower and the Facility Administrative Agent; or;
(xiv) the Advisory Agreement Performance Guarantor shall fail to maintain a minimum Net Worth equal to the sum of (i) $170,000,000 plus (ii) 50% of any equity and Subordinated Debt issued by the Performance Guarantor after the Effective DateAmendment No. 1 Effective Date minus (iii) 50% of any equity and Subordinated Debt retired or redeemed by the Performance Guarantor after the Amendment No. 1 Effective Date; provided that, in no event shall the minimum Net Worth be less than $170,000,000;
(xv) the Performance Guarantor shall fail to satisfy the RIC/BDC Requirements;
(xvi) the Performance Guarantor shall fail to maintain “asset coverage” (as defined in and determined pursuant to Section 18 of the 0000 Xxx) with respect to its “senior securities representing indebtedness” (as defined in Section 18 of the 0000 Xxx) of at least 200% (or such higher percentage as may be set forth in Section 18 of the 1940 Act or as otherwise provided in Applicable Law); provided, that for purposes of testing compliance with this Section 7.18(xvi) the impact of the election of ASC 825 or similar accounting guideline with respect to determining the fair value of the debt of the Performance Guarantor on a consolidated basis shall be terminatedexcluded (for avoidance of doubt, whether by action the intent of either party thereto, by operation this language is to cause the debt of law or by reason of its failure the Performance Guarantor to be renewed, or otherwise valued at par value rather than fair value)); or
(xvii) the Advisory Agreement Performance Guarantor shall cease pay any cash dividends; provided that the Performance Guarantor shall be permitted to be in full force and effect; or pay cash dividends if the Advisory Agreement Servicer shall have been amended or otherwise modified, without caused the prior written consent of Performance Guarantor to have delivered a certificate to the Facility Administrative Agent, in a manner that might (substantially in the reasonable judgment form of the Facility Agent) have a Material Adverse Effect; or PCM shall cease to be the adviser under the Advisory Agreement; {B2297203; 11} - 63 - thenExhibit G hereto, notwithstanding anything herein at least 10 Business Days prior to the contrary, so long as making of any such Servicer Termination Events shall not have been remedied within three Business Days or, if a cure period is applicable thereto, within three Business days following the expiration of such cure period, the Facility Agent may, or at the direction of the Required Lenders shall, by written notice cash dividend to the Servicer and the Backup Servicer (a “Servicer Termination Notice”), subject to the provisions of Section 7.19, terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer in accordance with the Priority of Payments.effect that :
Appears in 1 contract
Samples: Fifth Amended and Restated Credit Agreement (Gladstone Investment Corporation\de)
Servicer Termination Events. If The occurrence and continuance of any one of the following events (shall constitute a “Servicer Termination Event”) shall occur and be continuing on any day” hereunder:
(ia) the occurrence of a Level III Trigger Event;
(b) any failure by the Servicer to (i) deliver any Collections or (ii) make any payment, transfer or deposit deposit, in each case as required by this Agreement or any other Servicer Basic Document and, except with respect to paymentsin each case, transfers which failure shall continue unremedied for two Business Days after (A) receipt of written notice of such failure by the Servicer from the Administrative Agent, any Agent, any Lender or deposits required in connection with the occurrence Account Bank or (ii) discovery of such failure by a Responsible Officer of the Scheduled Maturity Date, such failure shall have continued without cure for a period of two Business Days; or {B2297203; 11} - 61 -Servicer;
(iic) any failure by the Servicer to give instructions or notice deliver to the BorrowerAdministrative Agent, any Lender each Agent, each Lender, the Image File Custodian or Managing Agent and/or the Facility Agent as Backup Servicer a Monthly Report and a Monthly Loan Tape when required by this Agreement or to deliver any Required Reports hereunder on or before the date occurring three that shall continue unremedied for two Business Days after the date such instructions, notice or report is required to be made or given, as the case may be, under the terms of this Agreement; or
(iii) any representation or warranty made or deemed made by the Servicer hereunder or under any other Transaction Document to which it is a party shall prove to be incorrect in any material respect as of the time when the same shall have been made and, in each case if such incorrectness is reasonably able to be remedied, when such incorrectness continues unremedied for more than fifteen (15) days after the first to occur of (i) the date on which receipt of written notice of such incorrectness requiring the same to be remedied shall have been given to failure by the Servicer by from the Borrower, the Facility Administrative Agent, any Lender or Managing Agent Agent, any Lender, the Image File Custodian or the Collateral Custodian and Backup Servicer or (ii) discovery of such failure by a Responsible Officer of the date on which Servicer;
(d) any merger or consolidation of the Servicer becomes aware thereof; orin breach of Section 7.15;
(ive) any failure on the part of by the Servicer duly to observe or perform in any material respect any other covenants covenant or agreements agreement of the Servicer set forth in this Agreement or any other Transaction Servicer Basic Document, other than those expressly addressed in another clause of this Section 7.18, to which it is a party as Servicer and, in each case if such failure is reasonably able to be remedied, when such failure continues shall remain unremedied for more than fifteen (15) 30 days after the first to occur earlier of (i) the date on which receipt of written notice of such failure requiring the same to be remedied shall have been given to by the Servicer by from the Borrower, the Facility Administrative Agent, any Managing Agent or Lender Agent, any Lender, the Image File Custodian or the Collateral Custodian and Backup Servicer or (ii) discovery of such failure by a Responsible Officer of the date on which Servicer; 122
(f) any representation, warranty or certification made by the Servicer becomes aware thereof; orin any Servicer Basic Document or in any other certificate, information or report delivered pursuant to any Servicer Basic Document shall prove to have been false or incorrect in any material respect when made or deemed made or delivered, and which remains unremedied for 30 days after the earlier of (i) receipt of written notice of such failure by the Servicer from the Administrative Agent, any Agent, any Lender, the Image File Custodian or the Backup Servicer or (ii) discovery of such failure by a Responsible Officer of the Servicer;
(v) the Servicer shall fail to service the Transferred Loans in accordance with the Management Manual; or
(vi) the occurrence of any Event of Default; or
(viig) an Insolvency Event shall occur with respect to the Servicer or the SubservicerServicer;
(h) an Event of Default shall have occurred and shall not have been waived; or
(viiii) any failure by the Servicer agrees or consents toto observe any covenant, or otherwise permits to occur, any amendment, modification, change, supplement or revision of or to the Management Manual in whole or in part that could reasonably be expected to have a material adverse effect upon the Transferred Loans or interest of any Lender, without the prior written consent of the Facility Agent; or
(ix) the Servicer or Subservicer shall be in (A) default in the payment of any Indebtedness in an individual or aggregate principal amount (or having a facility amount) in excess of (1) in the case of the Servicer, $25,000,000 {B2297203; 11} - 62 - or (2) in the case of the Subservicer, $1,000,000 beyond the period of grace, if any, provided in the instrument condition or agreement under which such Indebtedness was created; or (B) default in Section 6.05(h). During the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, with the giving of notice if required, any such Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its stated maturity, or to cause the termination of any related lending commitment prior to the stated termination date thereof (any applicable grace period having expired); or
(x) (A) a (x) final judgment for the payment of money in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $1,000,000 (individually or in the aggregate) or (y) final non-appealable judgment for the payment of money in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $2,500,000 individually shall have been rendered against the Servicer or the Subservicer by a court of competent jurisdiction, and such judgment, decree or order shall continue unsatisfied and in effect for any period of 30 consecutive days without a stay of execution, or (B) the Servicer or Subservicer shall have made payments of amounts in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $1,000,000 in settlement of any litigation, provided that any judgment rendered against the Subservicer shall be deemed a judgment rendered against the Servicer for purposes of this clause (x) if the Servicer shall satisfy such judgment from its own funds by reason of an indemnification obligation; or
(xi) the Tangible Net Worth of the Servicer at the end continuance of any of the Servicer’s fiscal quarters shall be less than the Minimum Tangible Net Worth; or
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or the Subservicer; or
(xiii) any Change-in-Control of the initial Servicer or the Subservicer occurs without the prior written consent of the Borrower and the Facility Agent; or
(xiv) the Advisory Agreement shall be terminated, whether by action of either party thereto, by operation of law or by reason of its failure to be renewed, or otherwise the Advisory Agreement shall cease to be in full force and effect; or the Advisory Agreement shall have been amended or otherwise modified, without the prior written consent of the Facility Agent, in a manner that might (in the reasonable judgment of the Facility Agent) have a Material Adverse Effect; or PCM shall cease to be the adviser under the Advisory Agreement; {B2297203; 11} - 63 - thenforegoing, notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events Event shall not have been remedied within three Business Days or, if a any applicable cure period is applicable thereto, within three Business days following or waived in writing by the expiration of such cure periodAdministrative Agent and the Required Lenders, the Facility Administrative Agent may, or acting at the direction of the Required Lenders shallLenders, by written notice to the Servicer (with a copy to each Agent, Hedge Counterparty, the Image File Custodian, the Account Bank and the Backup Servicer Servicer) (each, a “Servicer Termination Notice”), subject to the provisions of Section 7.19, shall terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and under the 2017-1A SUBI Servicing Agreement. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer in accordance with the Priority of Payments.
Appears in 1 contract
Samples: Credit Agreement
Servicer Termination Events. If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing on any day:
(i) any failure by the Servicer to make any payment, transfer or deposit as required by this Agreement and, except with respect to payments, transfers or deposits required in connection with the occurrence of the Scheduled Maturity Date, and such failure shall have continued without cure continue for a period of two (2) Business Days; or {B2297203; 11} - 61 -;
(ii) any failure by the Servicer to give instructions or notice to the Borrower, any Lender or Managing Agent and/or the Facility Administrative Agent as required by this Agreement or to deliver any Required Reports hereunder on or before the date occurring three two Business Days after the date such instructions, notice or report is required to be made or given, as the case may be, under the terms of this Agreement; or;
(iii) any representation or warranty made or deemed made by the Servicer hereunder or under any other Transaction Document to which it is a party shall prove to be incorrect in any material respect as of the time when the same shall have been made and, in each case if such incorrectness is reasonably able to be remedied, when such incorrectness continues unremedied for more than fifteen (15) days after the first to occur of (i) the date on which written notice of such incorrectness requiring the same to be remedied shall have been given to the Servicer by the Borrower, the Facility Agent, any Lender or Managing Agent or the Collateral Custodian and (ii) the date on which the Servicer becomes aware thereof; or
(iv) 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 Agreement or any other Transaction Document, other than those expressly addressed in another clause of this Section 7.18, Document to which it is a party as Servicer and, in each case if such failure is reasonably able to be remedied, when such failure that continues unremedied for more than a period of fifteen (15) days after the first to occur of (A) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Managing Agent or the Borrower and (B) the date on which the Servicer becomes or reasonably should have become aware thereof;
(iv) any representation, warranty or certification made by the Servicer in this 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 such failure, if susceptible to a cure, shall continue unremedied for a period of fifteen (15) days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Borrower, the Facility Administrative Agent, any Managing Agent or Lender or the Collateral Custodian Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof; or;
(v) the Servicer shall fail to service the Transferred Loans in accordance with the Management Manual; orCredit and Collection Policy;
(vi) the occurrence of any Event of Default; or
(vii) an Insolvency Event shall occur with respect to the Servicer or the Subservicer; orServicer;
(viiivii) the Servicer agrees or consents to, or otherwise permits to occur, any amendment, modification, change, supplement or revision of or to materially alter the Management Manual in whole or in part that could reasonably be expected to have a material adverse effect upon the Transferred Loans or interest of any Lender, Credit and Collection Policy without the prior written consent of the Facility Agent; orRequired Lenders;
(viii) any financial or asset information reasonably requested by the Administrative Agent or any Managing Agent as provided herein is not provided as requested within five (5) Business Days (or such longer period as the Administrative Agent or such Managing Agent may consent to) of the receipt by the Servicer of such request;
(ix) the rendering against the Servicer of a final judgment, decree or Subservicer shall be in (A) default in the payment of any Indebtedness in an individual or aggregate principal amount (or having a facility amount) in excess of (1) in the case of the Servicer, $25,000,000 {B2297203; 11} - 62 - or (2) in the case of the Subservicer, $1,000,000 beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or (B) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, with the giving of notice if required, any such Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its stated maturity, or to cause the termination of any related lending commitment prior to the stated termination date thereof (any applicable grace period having expired); or
(x) (A) a (x) final judgment order for the payment of money in excess of (1) in the case of the Servicer, U.S. $25,000,000 or (2) in the case of the Subservicer, $1,000,000 5,000,000 (individually or in the aggregate) or (y) final non-appealable judgment for and the payment continuance of money in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $2,500,000 individually shall have been rendered against the Servicer or the Subservicer by a court of competent jurisdiction, and such judgment, decree or order shall continue unsatisfied and in effect for any period of 30 consecutive days without a stay of execution, or (B) the Servicer or Subservicer shall have made payments of amounts in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $1,000,000 in settlement of any litigation, provided that any judgment rendered against the Subservicer shall be deemed a judgment rendered against the Servicer for purposes of this clause ;
(x) the failure of the Performance Guarantor 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 that would permit acceleration of such recourse debt or other obligations if the Servicer shall satisfy such judgment from its own funds by reason of an indemnification obligation; orevent or condition has not been waived;
(xi) the Tangible Net Worth any Guarantor Event of the Servicer at the end of any of the Servicer’s fiscal quarters Default shall be less than the Minimum Tangible Net Worth; oroccur;
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or a material adverse change occurs with regard to the Subservicer; orcollectibility of the Transferred Loans, taken as a whole;
(xiii) any Change-in-Control of the initial Servicer or the Subservicer occurs is made without the prior written consent of the Borrower and the Facility Administrative Agent; or;
(xiv) the Advisory Agreement Performance Guarantor shall fail to maintain a minimum Net Worth equal to the sum of (i) $155,000,000 plus (ii) 50% of any equity and Subordinated Debt issued by the Performance Guarantor after the Effective Date;
(xv) the Performance Guarantor shall fail to satisfy the RIC/BDC Requirements or shall fail to maintain “Asset Coverage” (as such term is defined in the RIC/BDC Requirements) of at least 200%; or
(xvi) the Performance Guarantor shall pay any cash dividends; provided that the Performance Guarantor shall be terminatedpermitted to pay cash dividends if the Servicer shall have caused the Performance Guarantor to have delivered a certificate to the Administrative Agent, whether substantially in the form of Exhibit G hereto, at least 10 Business Days prior to the making of any such cash dividend to the effect that (i) the amount of the declared dividend has been determined in good faith by action the Board of either party theretoDirectors of the Performance Guarantor on the basis of the most current financial information of the Performance Guarantor then available for the related period; (ii) the amount of the declared dividend does not exceed the net investment income and the net capital gain realized by the Performance Guarantor for the related period, based on the financial information referred to in clause (i) above; and (iii) to the extent the declared dividend does not equal the net investment income and the net capital gain realized by operation of law or by reason of its failure the Performance Guarantor for the related period, the proposed dividend to be renewed, declared by the Performance Guarantor for the immediately ensuing period shall be either (x) reduced by the amount such dividend for the immediately preceding period exceeded the net investment income and the net capital gain realized by the Performance Guarantor for the immediately preceding period or otherwise (y) increased by the Advisory Agreement shall cease to be in full force amount such dividend or distribution for the immediately preceding period was less than the net investment income and effectthe net capital gains realized by the Performance Guarantor for the immediately preceding period; or the Advisory Agreement shall have been amended or otherwise modified, without the prior written consent of the Facility Agent, in a manner that might (in the reasonable judgment of the Facility Agent) have a Material Adverse Effect; or PCM shall cease to be the adviser under the Advisory Agreement; {B2297203; 11} - 63 - then, notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied within three Business Days or, if a cure period is applicable thereto, within three Business days following at the expiration of such any applicable cure period, the Facility Administrative Agent may, or at the direction of the Required Lenders shall, by written notice to the Servicer and the Backup Servicer (a “Servicer Termination Notice”), subject to the provisions of Section 7.19, either (i) terminate all of the rights and obligations of the Servicer as Servicer under this AgreementAgreement or (ii) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and simultaneously reappoint the Servicer for a period not to exceed one month (subject to renewal at the sole discretion of the Administrative Agent, acting at the direction of the Required Lenders), at the expiration of which appointment the Servicer’s rights and obligations hereunder shall automatically terminate without further action on the part of any party hereto. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer in accordance with the Priority of PaymentsServicer.
Appears in 1 contract
Samples: Credit Agreement (Gladstone Investment Corporation\de)
Servicer Termination Events. If The occurrence of any one of the following events (shall with respect to the Servicer be a “Servicer Termination Event”) shall occur and be continuing on any day:Even” which are in full substitution for the Service Termination Events contained in Section 4.01 of the Current Servicing Agreement.
(ia) any failure by the Servicer fails to make any payment, transfer or deposit as required by this pursuant to the Servicing Agreement andon the day when due, except with respect to payments, transfers or deposits required in connection with the occurrence of the Scheduled Maturity Date, such failure shall have continued without cure each case that continues unremedied for a period of two Business Days; or {B2297203; 11} - 61 -
(ii2) any failure by the Servicer to give instructions or notice to the Borrower, any Lender or Managing Agent and/or the Facility Agent as required by this Agreement or to deliver any Required Reports hereunder on or before the date occurring three Business Days after the date such instructions, notice or report is required to be made or given, as the case may be, under the terms of this Agreement; or
(iii) any representation or warranty made or deemed made by the Servicer hereunder or under any other Transaction Document to which it is a party shall prove to be incorrect in any material respect as of the time when the same shall have been made and, in each case if such incorrectness is reasonably able to be remedied, when such incorrectness continues unremedied for more than fifteen (15) days after the first earlier to occur of (ix) actual discovery by a Responsible Officer of the Servicer, or (y) the date on which written notice of such incorrectness requiring the same to be remedied shall have has been given to the Servicer by Lender;
(b) any representation or warranty made by the Borrower, the Facility Agent, any Lender or Managing Agent Servicer in this Supplement or the Collateral Custodian Servicing Agreement or in any certificate or report delivered pursuant to the Servicing Agreement shall prove to have been incorrect in any material respect when made and such is not cured within thirty (ii30) days after the earlier to occur of (x) actual discovery by a Responsible Officer of the Servicer, or (y) the date on which written notice requiring the same to be remedied has been given to the Servicer becomes aware by Lender; provided, however, that if any such breach is reasonably remediable within 180 days after its occurrence, such breach shall not be a Servicer Termination Event hereunder for such period of time (but not longer than 180 days following the occurrence thereof; or) as the Servicer is attempting to remedy it;
(ivc) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements covenant of the Servicer set forth in this the Servicing Agreement or any other Transaction Document, other than those expressly addressed in another clause of this Section 7.18, to which it is a party as Servicer and, in each case if such failure is reasonably able to be remedied, when such failure continues unremedied for more than fifteen (15) not cured within 30 days after the first earlier to occur of (ix) actual discovery by responsible officer of the Servicer, or (y) 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 Borrower, the Facility Agent, any Managing Agent or Lender or the Collateral Custodian and (ii) the date on which the Servicer becomes aware thereof; orLender;
(vd) the Servicer shall fail to deliver any monthly Servicer Report required to be delivered under the Servicing Agreement on or before the day when due, and such failure continues unremedied for a period of three (3) Business Days;
(e) it shall become unlawful for any reason for the Servicer to continue to service the Transferred Loans in accordance with Designated Receivables or otherwise perform its obligations under the Management Manual; or
(vi) the occurrence of any Event of Default; or
(vii) an Insolvency Event shall occur with respect to Servicing Agreement or the Servicer or shall cease to possess all material and necessary licenses to carry out its obligations under the SubservicerServicing Agreement; or
(viii) provided if the Servicer agrees can continue servicing the Designated Receivables and perform its obligations under the Servicing Agreement without one or consents to, or otherwise permits more material and necessary licenses that the failure to occur, any amendment, modification, change, supplement or revision of or to the Management Manual in whole or in part that could reasonably be expected to have does not have a material adverse effect upon on the Transferred Loans Lender or interest the Servicer's performance under the Servicing Agreement, the Servicer shall have ninety (90) days to obtain such licenses after the earlier to occur of (x) actual discovery by a Responsible Officer of the Servicer, or (y) the date on which written notice requiring the same to be remedied has been given to the Servicer by Lender;
(f) For any Measurement Period ending on or after September 30, 2000, both (i) the Lender Net Collections for the Collection Measurement Period then ending are less than 90% of the Projected Lender Net Collections for such Collection Measurement Period (the amount of any Lendersuch deficit, without a “Shortfall”) and (ii) there was also a Shortfall for the prior written consent immediately-preceding Measurement Period for the Collection Measurement Period then ended; provided that no Servicer Termination Event shall occur under this clause (f) if and to the extent that as of the Facility Agent; or
last day of any Measurement Period (ixA) the aggregate Lender Net Collections from all prior Measurement Periods exceeded 90% of the Projected Lender Net Collections from all such prior Measurement Periods such surplus then exceeds the applicable Shortfall (as determined in clause (i) above) in the current Collection Measurement Period or (B) the Servicer pays to the Lender for application to the amounts owing pursuant to the Note an amount equal to or Subservicer greater than the applicable Shortfall (as determined in clause (i) above after application of clause (A) above) in the current Collection Measurement Period;
(g) the Servicer's consolidated stockholder's equity as required to be shown on its consolidated financial statements is less than $5,000,000;
(h) the Servicer shall consent to the appointment of a conservator, receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to it or of or relating to all or substantially all of its property;
(i) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, 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 decree or order shall have remained in force undischarged or unstayed for a period of 60 days;
(j) the Servicer shall be in (A) default in the payment of any Indebtedness in an individual or aggregate principal amount (or having a facility amount) debt in excess of $100,000 beyond any applicable grace or cure period and which default is not currently waived;
(1k) the Servicer shall be in breach in the case of the Servicer, $25,000,000 {B2297203; 11} - 62 - or (2) in the case of the Subservicer, $1,000,000 beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or (B) default in the observance or performance of any other material agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, with the giving of notice if required, any such Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its stated maturity, or to cause the termination of any related lending commitment prior to the stated termination date thereof (material contract beyond any applicable grace or cure period having expired)and such breach is not cured or currently waived within forty-five (45) days of such breach; or
(x) (A) a (x) final judgment for the payment of money in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $1,000,000 (individually or in the aggregate) or (y) final non-appealable judgment for the payment of money in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $2,500,000 individually shall have been rendered against the Servicer or the Subservicer by a court of competent jurisdiction, and such judgment, decree or order shall continue unsatisfied and in effect for any period of 30 consecutive days without a stay of execution, or (Bl) the Servicer or Subservicer shall have made payments of amounts in excess of (1) in the case of the Servicer, $25,000,000 or (2) in the case of the Subservicer, $1,000,000 in settlement of any litigation, provided that any judgment rendered against the Subservicer shall be deemed a judgment rendered against the Servicer for purposes of this clause (x) if the Servicer shall satisfy such judgment from its own funds by reason of an indemnification obligation; or
(xi) the Tangible Net Worth of the Servicer at the end of any of the Servicer’s fiscal quarters shall be less than the Minimum Tangible Net Worth; or
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or the Subservicer; or
(xiii) any Change-in-Control of the initial Servicer or the Subservicer occurs without the prior written consent of the Borrower and the Facility Agent; or
(xiv) the Advisory Agreement shall be terminated, whether by action of either party thereto, by operation of law or by reason of its failure to be renewed, or otherwise the Advisory Agreement shall cease to be in full force and effect; or the Advisory Agreement shall have been amended or otherwise modified, without the prior written consent of the Facility Agent, in a manner that might (in the reasonable judgment of the Facility Agent) have a Material Adverse Effect; or PCM shall cease to be the adviser under the Advisory Agreement; {B2297203; 11} - 63 - then, notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied within three Business Days or, if a cure period is applicable thereto, within three Business days following the expiration of such cure period, the Facility Agent may, or at the direction of the Required Lenders shall, by written notice to the Servicer and the Backup Servicer (a “Servicer Termination Notice”), subject to the provisions of Section 7.19, terminate all of the rights and obligations removal of the Servicer as Servicer under this Agreement. The Borrower shall pay all reasonable set-up and conversion costs associated with any securitization of the transfer Servicer during the continuation of servicing rights to the Successor an Event of Default or Servicer in accordance with the Priority of PaymentsTermination Event thereunder.
Appears in 1 contract
Samples: Supplement to Servicing Agreement (Encore Capital Group Inc)
