The Backup Servicer. (a) The Issuer, the Indenture Trustee and the Trust Depositor hereby appoint Xxxxx Fargo Bank, National Association to act as Backup Servicer in accordance with the terms of this Agreement. Xxxxx Fargo Bank, National Association hereby accepts such appointment and agrees to perform the duties and responsibilities with respect thereto set forth herein. (b) The Backup Servicer shall perform the following duties and obligations: (i) On or before the Closing Date, the Backup Servicer shall accept from the Servicer delivery of the information required to be set forth in the Quarterly Reports in hard copy and in an agreed upon electronic format. (ii) Not later than 12:00 noon New York time two Business Days prior to each Determination Date, the Servicer shall provide to the Backup Servicer and the Backup Servicer shall accept delivery of tape in an agreed upon electronic format (the “Tape”) from the Servicer, which shall include but not be limited to the following information: (x) for each Loan, the (1) Loan number, (2) legal name of the related Obligor, (3) state or country of the Obligor’s chief executive office, (4) SIC Code, (5) outstandings at cost, (6) type of Loan (i.e., term Loan or revolving Loan), (7) type of security interest (i.e., senior or subordinated), (8) term payment type (i.e., amortizing or balloon), (9) origination date, (10) maturity date, (11) benchmark for the Loan’s interest rate, (12) margin, (13) frequency of Scheduled Payments, (14) controlling interest, (15) the collection status, (16) the Loan status, (17) the Outstanding Loan Balance and (18) the date the current S&P Rating with respect to such Loan was issued and the date the current S&P Rating with respect to such Loan expires, (y) the Aggregate Outstanding Loan Balance, and (z) the Loan Pool Balance. (iii) Prior to the related Payment Date, the Backup Servicer shall review the Quarterly Report to ensure that it is complete on its face and that the following items in such Quarterly Report have been accurately calculated, if applicable, and reported: (A) the Aggregate Outstanding Loan Balance, (B) the Backup Servicing Fee, (C) the Loans that are 30 or more days Delinquent (other than Defaulted Loans), (D) the Defaulted Loans, (E) the portfolio yield, (F) the principal and interest payments due to Noteholders and (G) the Loan Pool Balance. The Backup Servicer shall notify the Indenture Trustee, the Initial Purchasers and the Servicer of any disagreements with the Quarterly Report based on such review not later than the Business Day preceding such Payment Date. (iv) If the Servicer disagrees with the report provided under Section 5.22(b)(iii) by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer, if possible, and notify the Indenture Trustee, the Swap Counterparties and the Initial Purchasers of the resolution thereof. The Servicer hereby agrees to cooperate, at its own expense, with the Backup Servicer in reconciling any discrepancies herein. If, within 20 days after the delivery of the report provided under Section 5.22(b)(iii) by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Servicer, the Indenture Trustee, the Swap Counterparties and the Initial Purchasers of the continued existence of such discrepancy. Following receipt of such notice by the Indenture Trustee, the Swap Counterparties and the Initial Purchasers, the Servicer shall deliver to the Indenture Trustee, the Swap Counterparties, the Initial Purchasers, and the Backup Servicer, no later than the related Payment Date, a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto. (c) After the Servicer’s and Backup Servicer’s receipt of an effective notice of termination terminating the Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer under this Agreement, whether with respect to the Loans or otherwise, shall pass to and be vested in the Backup Servicer, and the Backup Servicer shall be deemed the successor Servicer, subject to and in accordance with the provisions of Section 8.03, as long as the Backup Servicer is not prohibited by Requirements of Law from fulfilling the same, as evidenced by an Opinion of Counsel. (d) Any Person (i) into which the Backup Servicer may be merged or consolidated, (ii) that may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) that may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement. (e) As compensation for its backup servicing activities hereunder, the Backup Servicer shall be entitled to receive the Backup Servicing Fee from the Servicer. The Backup Servicer’s entitlement to receive the Backup Servicing Fee (other than due and unpaid Backup Servicing Fees owed through such date) shall cease on the earliest to occur of: (i) it becoming the Successor Servicer, (ii) its removal as Backup Servicer, or (iii) the termination of this Agreement. (f) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto that the Backup Servicer will be responsible for any misconduct or negligence on the part of such agents, attorneys or custodians acting on the routine and ordinary day-to-day operations for and on behalf of the Backup Servicer. Neither the Backup Servicer nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement, other than damages or expenses that result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement. (g) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any Tape, certificate or other data or document delivered to the Backup Servicer hereunder or on which the Backup Servicer must rely in order to perform its obligations hereunder, and the parties hereto each agree to look only to the Servicer to perform such obligations. With respect to Section 5.22(b), the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer. The Backup Servicer shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of its respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), (iii) the invalidity or unenforceability of any Loan under Requirements of Law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Loan, or (v) the acts or omissions of any successor Backup Servicer.
Appears in 3 contracts
Samples: Transfer and Servicing Agreement (American Capital Strategies LTD), Transfer and Servicing Agreement (American Capital Strategies LTD), Transfer and Servicing Agreement (American Capital Strategies LTD)
The Backup Servicer. (a) The Issuer, the Indenture Trustee and the Trust Depositor hereby appoint Xxxxx Fargo BankBank Minnesota, National Association to act as Backup Servicer in accordance with the terms of this Agreement. Xxxxx Fargo BankBank Minnesota, National Association hereby accepts such appointment and agrees to perform the duties and responsibilities with respect thereto set forth herein.
(b) The Backup Servicer shall perform the following duties and obligations:
(i) On or before the Closing Date, the Backup Servicer shall accept from the Servicer delivery of the information required to be set forth in the Quarterly Monthly Reports in hard copy and in an agreed upon electronic format.
(ii) Not later than 12:00 noon New York time two (2) Business Days prior to each Determination Date, the Servicer shall provide to the Backup Servicer and the Backup Servicer shall accept delivery of tape in an agreed upon electronic format (the “Tape”) from the Servicer, which shall include but not be limited to the following information: (x) for each Loan, the (1) Loan number, (2) legal name of the related Obligor, (3) state or country of the Obligor’s chief executive office, (4) SIC Code, (5) outstandings at cost, (6) type of Loan (i.e., term Loan or revolving Revolving Loan), (7) type of security interest (i.e., senior or subordinated), (8) term payment type (i.e., amortizing or balloon), (9) origination date, (10) maturity date, (11) benchmark for the Loan’s interest rate, (12) margin, (13) frequency of Scheduled Payments, (14) controlling interest, (15) the collection status, (16) the Loan status, and (17) the Outstanding Loan Balance Balance, and (18) the date the current S&P Rating with respect to such Loan was issued and the date the current S&P Rating with respect to such Loan expires, (y) the Aggregate Outstanding Loan Balance, and (z) the Loan Pool Balance.
(iii) Prior to the related Payment Date, the Backup Servicer shall review the Quarterly Monthly Report to ensure that it is complete on its face and that the following items in such Quarterly Monthly Report have been accurately calculated, if applicable, and reported: (A) the Aggregate Outstanding Loan Balance, (B) the Backup Servicing Fee, (C) the Loans that are 30 thirty (30) or more days Delinquent (other than Defaulted Loans), (D) the Defaulted Loans, (E) the portfolio yield, Portfolio Yield and (F) the principal and interest payments due to Noteholders and (G) the Loan Pool BalanceNoteholders. The Backup Servicer shall notify the Indenture Trustee, the Initial Purchasers Purchaser and the Servicer of any disagreements with the Quarterly Monthly Report based on such review not later than the Business Day preceding such Payment Date.
(iv) If the Servicer disagrees with the report provided under Section subsection 5.22(b)(iii) by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer, if possible, and notify the Indenture Trustee, the Swap Counterparties and the Initial Purchasers Purchaser of the resolution thereof. The Servicer hereby agrees to cooperate, at its own expense, with the Backup Servicer in reconciling any discrepancies herein. If, within 20 twenty (20) days after the delivery of the report provided under Section subsection 5.22(b)(iii) by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Servicer, the Indenture Trustee, the Swap Counterparties and the Initial Purchasers Purchaser of the continued existence of such discrepancy. Following receipt of such notice by the Indenture Trustee, the Swap Counterparties and the Initial PurchasersPurchaser, the Servicer shall deliver to the Indenture Trustee, the Swap Counterparties, the Initial PurchasersPurchaser, and the Backup Servicer, no later than the related Payment Date, a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto.
(c) After the Servicer’s and Backup Servicer’s receipt of an effective notice of termination terminating the Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer under this Agreement, whether with respect to the Loans or otherwise, shall pass to and be vested in the Backup Servicer, and the Backup Servicer shall be deemed the successor Servicer, subject to and in accordance with the provisions of Section 8.03, as long as the Backup Servicer is not prohibited by Requirements of Law from fulfilling the same, as evidenced by an Opinion of Counsel.
(d) Any Person (i) into which the Backup Servicer may be merged or consolidated, (ii) that may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) that may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement.
(e) As compensation for its backup servicing activities hereunder, the Backup Servicer shall be entitled to receive the Backup Servicing Fee from the Servicer. The Backup Servicer’s entitlement to receive the Backup Servicing Fee (other than due and unpaid Backup Servicing Servicer Fees owed through such date) shall cease on the earliest to occur of: (i) it becoming the Successor Servicer, (ii) its removal as Backup Servicer, or (iii) the termination of this Agreement.
(f) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto that the Backup Servicer will be responsible for any misconduct or negligence on the part of such agents, attorneys or custodians acting on the routine and ordinary day-–to-–day operations for and on behalf of the Backup Servicer. Neither the Backup Servicer nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement, other than damages or expenses that result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement.
(g) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any Tape, certificate or other data or document delivered to the Backup Servicer hereunder or on which the Backup Servicer must rely in order to perform its obligations hereunder, and the parties hereto each agree to look only to the Servicer to perform such obligations. With respect to Section subsection 5.22(b), the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer. The Backup Servicer shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of its respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), (iii) the invalidity or unenforceability of any Loan under Requirements of Law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Loan, or (v) the acts or omissions of any successor Backup Servicer.
Appears in 2 contracts
Samples: Transfer and Servicing Agreement (American Capital Strategies LTD), Transfer and Servicing Agreement (American Capital Strategies LTD)
The Backup Servicer. (a) The Issuer, the Indenture Trustee and the Trust Depositor hereby appoint Xxxxx Fargo BankLyon Financial Services, National Association Inc. (d/b/a U.S. Bank Portfolio Services) to act as Backup Servicer in accordance with the terms of this Agreement. Xxxxx Fargo BankLyon Financial Services, National Association Inc. (d/b/a U.S. Bank Portfolio Services) hereby accepts such appointment and agrees to perform the duties and responsibilities with respect thereto set forth herein.
(b) The Backup Servicer shall perform the following duties and obligations:
(i) On or before the Closing Date, the Backup Servicer shall accept from the Servicer delivery of the information required to be set forth in the Quarterly Reports in hard copy and in an agreed upon electronic format.
(ii) Not later than 12:00 noon New York City time two four Business Days prior to each Determination Dateafter the end of the related Due Period, the Servicer shall provide to the Backup Servicer and the Backup Servicer shall accept delivery of tape in an agreed upon electronic format (the “Tape”) from the Servicer, which shall include but not be limited to the following information: (xA) for each Loan, the (1) Loan number, (2) legal name of the related ObligorLoan category (i.e., Traditional Middle Market Loan, Large Middle Market Loan, or Broadly Syndicated Loan), (3) state or country of the Obligor’s chief executive officeXxxxx’x and S&P Industry Classification Group, (4) SIC Code, (5) outstandings at cost, (6) type of Loan (i.e., term Term Loan, Delayed Draw Term Loan or revolving Revolving Loan), (75) type of security interest (i.e., senior First Lien Loan, Second Lien Loan, or subordinatedSubordinated Loan), (8) term payment type (i.e., amortizing or balloon), (96) origination date, (107) maturity date, (11) 8) benchmark for the Loan’s interest rateLoan Rate, (129) margin, (1310) frequency of Scheduled Payments, (14) controlling interest, (1511) the collection status, and (16) the Loan status, (1712) the Outstanding Loan Balance and (18) the date the current S&P Rating with respect to such Loan was issued and the date the current S&P Rating with respect to such Loan expires, (yB) the Aggregate Outstanding Loan Balance. With respect to its duties pursuant to this Section 5.15(b)(ii), and (z) the Loan Pool BalanceBackup Servicer shall have no duty to confirm that the Tape contains the foregoing information nor shall it be required to verify, recompute, reconcile or recalculate any such data or information.
(iii) Prior to the related Payment Distribution Date, the Backup Servicer shall review the Quarterly Report to ensure that it is complete on its face face, and based solely on the information provided to the Backup Servicer pursuant to Section 5.15(b)(ii), that the following items in such Quarterly Report have been accurately calculated, if applicable, and reported: (A) the Aggregate Outstanding Loan Balance, (B) the Backup Servicing Fee, (C) the Loans that are 30 or more than 60 days Delinquent delinquent (other than Defaulted Charged-Off Loans), (D) the Defaulted Charged-Off Loans, and (E) the portfolio yield, (F) the principal and interest payments due to Noteholders and (G) the Loan Pool BalancePriority of Payments. The Backup Servicer shall notify the Indenture Trustee, the Initial Purchasers Purchaser and the Servicer of any disagreements discrepancies with the Quarterly Report based on such review not later than the Business Day preceding such Payment Distribution Date.
(iv) If the Servicer disagrees with the report provided under Section 5.22(b)(iiiparagraph (iii) above by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer, Servicer if possible, and notify the Indenture Trustee, the Swap Counterparties Initial Purchaser and the Initial Purchasers Rating Agencies of the resolution thereof. The Servicer hereby agrees to cooperate, cooperate at its own expense, expense with the Backup Servicer in reconciling any discrepancies herein. If, If within 20 days after the delivery of the report provided under Section 5.22(b)(iiiparagraph (iii) above by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Servicer, the Indenture Trustee, the Swap Counterparties Initial Purchaser and the Initial Purchasers Rating Agencies of the continued existence of such discrepancy. Following receipt of such notice by the Indenture Trustee, the Swap Counterparties Initial Purchaser and the Initial PurchasersRating Agencies, the Servicer shall deliver to the Indenture Trustee, the Swap CounterpartiesInitial Purchaser, the Initial Purchasers, Backup Servicer and the Backup Servicer, Rating Agencies no later than the related Payment Date, Distribution Date a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto. With respect to the foregoing, the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer.
(c) After the Servicer’s and Backup Servicer’s receipt of an effective notice of termination terminating or resignation by the Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer Servicer, under this Agreement, whether with respect to the Loans or otherwise, shall pass to and be vested in the Successor Servicer or the Backup Servicer, as applicable in accordance with Section 8.03 and the Backup Servicer such applicable party shall be deemed the successor Successor Servicer, subject to and in accordance with the provisions of Section 8.03, as long as the Backup such named Successor Servicer is not prohibited by Requirements of any Applicable Law from fulfilling the same, as evidenced by an Opinion of Counsel; provided if Lyon as Backup Servicer becomes the Successor Servicer, it will not make any Scheduled Payment Advances.
(d) Any Person (i) into which the Backup Servicer may be merged or consolidated, (ii) that may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) that may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement.
(e) As compensation for its backup servicing activities hereunder, the Backup Servicer shall be entitled to receive the Backup Servicing Fee. The Backup Servicing Fee from the Servicershall be calculated and payable quarterly in arrears on each Distribution Date. The Backup Servicer’s entitlement to receive the portion of the Backup Servicing Fee related to its Backup Servicer duties (other than due and unpaid Backup Servicing Servicer Fees owed through such date) shall cease on the earliest to occur of: (i) it becoming the Successor Servicer, (ii) its removal as Backup Servicer, or (iii) the termination of this Agreement.
(f) The Backup Servicer may be removed and replaced as provided in Section 8.10.
(g) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto that the Backup Servicer will be responsible for any misconduct or negligence on the part of such agents, attorneys or custodians acting on the routine and ordinary day-to-day operations for and on behalf of the Backup Servicer. Neither the Backup Servicer nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement, Agreement other than damages or expenses that result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement.
(g) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any Tape, certificate or other data or document delivered to the Backup Servicer hereunder or on which the Backup Servicer must rely in order to perform its obligations hereunder, and the parties hereto each agree to look only to the Servicer to perform such obligations. With respect to Section 5.22(b), the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer. The Backup Servicer shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of its respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), (iii) the invalidity or unenforceability of any Loan under Requirements of Law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Loan, or (v) the acts or omissions of any successor Backup Servicer.
Appears in 1 contract
The Backup Servicer. (a) The Issuer, the Indenture Trustee and the Trust Depositor hereby appoint Xxxxx Wxxxx Fargo Bank, National Association to act as Backup Servicer in accordance with the terms of this Agreement. Xxxxx Wxxxx Fargo Bank, National Association hereby accepts such appointment and agrees to perform the duties and responsibilities with respect thereto set forth herein.
(b) The Backup Servicer shall perform the following duties and obligations:
(i) On or before the Closing Date, the Backup Servicer shall accept from the Servicer delivery of the information required to be set forth in the Quarterly Monthly Reports in hard copy and in an agreed upon electronic format.
(ii) Not later than 12:00 noon New York time two four Business Days prior to each Determination Dateafter the end of the related Due Period, the Servicer shall provide to the Backup Servicer and the Backup Servicer shall accept delivery of tape in an agreed upon electronic format (the “Tape”) from the Servicer, which shall include but not be limited to the following information: (xA) for each Loan, the (1) Loan number, (2) legal name of the related ObligorLoan category (i.e., asset based financed, healthcare secured, senior cash flow, subordinate cash flow or real estate) (3) state or country of the Obligor’s chief executive officeprimary business, (4) SIC NAICS Code, (5) outstandings at cost, (6) type of Loan (i.e., term Partially Funded Term Loan, Fully Funded Term Loan, Reducing Revolving Loan or revolving Traditional Revolving Loan), (76) type of security interest (i.e., senior or subordinated), (8) 7) term payment type (i.e., amortizing Amortizing Loans, Balloon Loans or balloonBullet Loans), (8) origination date, (9) origination maturity date, (10) maturity datebenchmark for Loan Rate, (11) benchmark for the Loan’s interest ratemargin, (12) margin, (13) frequency of Scheduled Payments, (1413) controlling interestinterest (i.e., whether the Loan is syndicated and whether the Issuer holds a majority of the outstanding indebtedness under such syndicated Loan), (1514) the collection status, (1615) the Loan status, and (1716) the Outstanding Loan Balance and (18) the date the current S&P Rating with respect to such Loan was issued and the date the current S&P Rating with respect to such Loan expires, (yB) the Aggregate Outstanding Loan Balance. With respect to its duties pursuant to this Section 5.15(b)(ii), and (z) the Loan Pool BalanceBackup Servicer shall have no duty to confirm that the Tape contains the foregoing information.
(iii) Prior to the related Payment Date, the Backup Servicer shall review the Quarterly Monthly Report to ensure that it is complete on its face and that the following items in such Quarterly Monthly Report have been accurately calculated, if applicable, and reported: (A) the Aggregate Outstanding Loan Balance, (B) the Backup Servicing Fee, (C) the Loans that are 30 or more than one day delinquent in the case of Asset Based Revolvers and more than 60 days Delinquent delinquent in the case of all other Loans (other than Defaulted Charged–Off Loans), (D) the Defaulted Charged–Off Loans, and (E) the portfolio yield, (F) the principal and interest payments due to Noteholders and (G) the Loan Pool BalancePriority of Payments. The Backup Servicer shall notify the Indenture Trustee, each Hedge Counterparty, the Initial Purchasers and the Servicer of any disagreements discrepancies with the Quarterly Monthly Report based on such review not later than the Business Day preceding such Payment Date.
(iv) If the Servicer disagrees with the report provided under Section 5.22(b)(iiiparagraph (iii) above by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer, Servicer if possible, and notify the Indenture Trustee, the Swap Counterparties and each Hedge Counterparty, the Initial Purchasers and the Rating Agencies of the resolution thereof. The Servicer hereby agrees to cooperate, cooperate at its own expense, expense with the Backup Servicer in reconciling any discrepancies herein. If, If within 20 days after the delivery of the report provided under Section 5.22(b)(iiiparagraph (iii) above by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Servicer, the Indenture Trustee, the Swap Counterparties and each Hedge Counterparty, the Initial Purchasers and the Rating Agencies of the continued existence of such discrepancy. Following receipt of such notice by the Indenture Trustee, each Hedge Counterparty, the Swap Counterparties Initial Purchasers and the Initial PurchasersRating Agencies, the Servicer shall deliver to the Indenture Trustee, the Swap Counterpartieseach Hedge Counterparty, the Initial Purchasers, the Backup Servicer and the Backup Servicer, Rating Agencies no later than the related Payment Date, Date a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto. With respect to the foregoing, the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer.
(c) After the Servicer’s and Backup Servicer’s receipt of an effective notice of termination terminating or resignation by the Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer Servicer, under this Agreement, whether with respect to the Loans or otherwise, shall pass to and be vested in the Successor Servicer or the Backup Servicer, as applicable in accordance with Section 8.03 and the Backup Servicer such applicable party shall be deemed the successor Successor Servicer, subject to and in accordance with the provisions of Section 8.03, as long as the Backup such named Successor Servicer is not prohibited by any Requirements of Law from fulfilling the same, as evidenced by an Opinion of Counsel; provided, however, if Wxxxx Fargo as Backup Servicer becomes the Successor Servicer, it will not make any Scheduled Payment Advances.
(d) Any Person (i) into which the Backup Servicer may be merged or consolidated, (ii) that may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) that may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement.
(e) As compensation for its backup servicing activities hereunder, the Backup Servicer shall be entitled to receive the Backup Servicing Fee from the Servicer. The Backup Servicing Fee shall be calculated and payable monthly in arrears on each Payment Date. The Backup Servicer’s entitlement to receive the Backup Servicing Fee (other than due and unpaid Backup Servicing Fees owed through such date) shall cease on the earliest to occur of: (i) it becoming the Successor Servicer, (ii) its removal as Backup Servicer, or (iii) the termination of this Agreement.
(f) The Backup Servicer may be removed with or without cause by the Majority Noteholders by notice given in writing to the Backup Servicer. In the event of any such removal, a replacement Backup Servicer may be appointed by Majority Noteholders.
(g) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto that the Backup Servicer will be responsible for any misconduct or negligence on the part of such agents, attorneys or custodians acting on the routine and ordinary day-to-day operations for and on behalf of the Backup Servicer. Neither the Backup Servicer nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement, Agreement other than damages or expenses that result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement.
(g) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any Tape, certificate or other data or document delivered to the Backup Servicer hereunder or on which the Backup Servicer must rely in order to perform its obligations hereunder, and the parties hereto each agree to look only to the Servicer to perform such obligations. With respect to Section 5.22(b), the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer. The Backup Servicer shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of its respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), (iii) the invalidity or unenforceability of any Loan under Requirements of Law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Loan, or (v) the acts or omissions of any successor Backup Servicer.
Appears in 1 contract
The Backup Servicer. (a) The Issuer, the Indenture Trustee and the Trust Depositor hereby appoint Xxxxx Wxxxx Fargo Bank, National Association to act as Backup Servicer in accordance with the terms of this Agreement. Xxxxx Wxxxx Fargo Bank, National Association hereby accepts such appointment and agrees to perform the duties and responsibilities with respect thereto set forth herein.
(b) The Backup Servicer shall perform the following duties and obligations:
(i) On or before the Closing Date, the Backup Servicer shall accept from the Servicer delivery of the information required to be set forth in the Quarterly Monthly Reports in hard copy and in an agreed upon electronic format.
(ii) Not later than 12:00 noon New York time two four Business Days prior to each Determination Dateafter the end of the related Due Period, the Servicer shall provide to the Backup Servicer and the Backup Servicer shall accept delivery of tape in an agreed upon electronic format (the “Tape”) from the Servicer, which shall include but not be limited to the following information: (xA) for each Loan, the (1) Loan number, (2) legal name of the related ObligorLoan category (i.e., asset based financed, healthcare secured, senior cash flow, subordinate cash flow or real estate) (3) state or country of the Obligor’s chief executive officeprimary business, (4) SIC NAICS Code, (5) outstandings at cost, (6) type of Loan (i.e., term Partially Funded Term Loan, Fully Funded Term Loan or revolving Revolving Loan), (76) type of security interest (i.e., senior or subordinated), (8) 7) term payment type (i.e., amortizing Amortizing Loans, Balloon Loans or balloonBullet Loans), (8) origination date, (9) origination maturity date, (10) maturity datebenchmark for Loan Rate, (11) benchmark for the Loan’s interest ratemargin, (12) margin, (13) frequency of Scheduled Payments, (1413) controlling interestinterest (i.e., whether the Loan is syndicated and whether the Issuer holds a majority of the outstanding indebtedness under such syndicated Loan), (1514) the collection status, (1615) the Loan status, and (1716) the Outstanding Loan Balance and (18) the date the current S&P Rating with respect to such Loan was issued and the date the current S&P Rating with respect to such Loan expires, (yB) the Aggregate Outstanding Loan Balance.With respect to its duties pursuant to this Section 5.15(b)(ii), and (z) the Loan Pool BalanceBackup Servicer shall have no duty to confirm that the Tape contains the foregoing information.
(iii) Prior to the related Payment Date, the Backup Servicer shall review the Quarterly Monthly Report to ensure that it is complete on its face and that the following items in such Quarterly Monthly Report have been accurately calculated, if applicable, and reported: (A) the Aggregate Outstanding Loan Balance, (B) the Backup Servicing Fee, (C) the Loans that are 30 or more than five Business Days delinquent in the case of Asset Based Revolvers and more than 60 days Delinquent delinquent in the case of all other Loans (other than Defaulted Charged–Off Loans), (D) the Defaulted Charged–Off Loans, and (E) the portfolio yield, (F) the principal and interest payments due to Noteholders and (G) the Loan Pool BalancePriority of Payments. The Backup Servicer shall notify the Indenture Trustee, the Initial Purchasers and the Servicer of any disagreements discrepancies with the Quarterly Monthly Report based on such review not later than the Business Day preceding such Payment Date.
(iv) If the Servicer disagrees with the report provided under Section 5.22(b)(iiiparagraph (iii) above by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer, Servicer if possible, and notify the Indenture Trustee, the Swap Counterparties Initial Purchasers and the Initial Purchasers Rating Agencies of the resolution thereof. The Servicer hereby agrees to cooperate, cooperate at its own expense, expense with the Backup Servicer in reconciling any discrepancies herein. If, If within 20 days after the delivery of the report provided under Section 5.22(b)(iiiparagraph (iii) above by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Servicer, the Indenture Trustee, the Swap Counterparties Initial Purchasers and the Initial Purchasers Rating Agencies of the continued existence of such discrepancy. Following receipt of such notice by the Indenture Trustee, the Swap Counterparties Initial Purchasers and the Initial PurchasersRating Agencies, the Servicer shall deliver to the Indenture Trustee, the Swap Counterparties, the Initial Purchasers, the Backup Servicer and the Backup Servicer, Rating Agencies no later than the related Payment Date, Date a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto. With respect to the foregoing, the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer.
(c) After the Servicer’s and Backup Servicer’s receipt of an effective notice of termination terminating or resignation by the Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer Servicer, under this Agreement, whether with respect to the Loans or otherwise, shall pass to and be vested in the Successor Servicer or the Backup Servicer, as applicable in accordance with Section 8.03 and the Backup Servicer such applicable party shall be deemed the successor Successor Servicer, subject to and in accordance with the provisions of Section 8.03, as long as the Backup such named Successor Servicer is not prohibited by Requirements of any Applicable Law from fulfilling the same, as evidenced by an Opinion of Counsel; provided that if Wxxxx Fargo as Backup Servicer becomes the Successor Servicer, it will not make any Scheduled Payment Advances.
(d) Any Person (i) into which the Backup Servicer may be merged or consolidated, (ii) that may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) that may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement.
(e) As compensation for its backup servicing activities hereunder, the Backup Servicer shall be entitled to receive the Backup Servicing Fee from the Servicer. The Backup Servicing Fee shall be calculated and payable monthly in arrears on each Payment Date. The Backup Servicer’s entitlement to receive the Backup Servicing Fee (other than due and unpaid Backup Servicing Fees owed through such date) shall cease on the earliest to occur of: (i) it becoming the Successor Servicer, (ii) its removal as Backup Servicer, or (iii) the termination of this Agreement.
(f) The Backup Servicer may be removed and replaced as provided in Section 8.10.
(g) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto that the Backup Servicer will be responsible for any misconduct or negligence on the part of such agents, attorneys or custodians acting on the routine and ordinary day-to-day operations for and on behalf of the Backup Servicer. Neither the Backup Servicer nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement, Agreement other than damages or expenses that result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement.
(g) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any Tape, certificate or other data or document delivered to the Backup Servicer hereunder or on which the Backup Servicer must rely in order to perform its obligations hereunder, and the parties hereto each agree to look only to the Servicer to perform such obligations. With respect to Section 5.22(b), the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer. The Backup Servicer shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of its respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), (iii) the invalidity or unenforceability of any Loan under Requirements of Law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Loan, or (v) the acts or omissions of any successor Backup Servicer.
Appears in 1 contract
The Backup Servicer. (a) The Issuer, the Indenture Trustee Issuer and the Trust Depositor hereby appoint Xxxxx Fargo BankLyon Financial Services, National Association Inc. to act as Backup Servicer in accordance with the terms of this Agreement. Xxxxx Fargo BankLyon Financial Services, National Association Inc. hereby accepts such appointment and agrees to perform the duties and responsibilities with respect thereto set forth herein.
(b) The Backup Servicer shall perform the following duties and obligations:
(i) On or before four Business Days after the Closing Date, the Backup Servicer shall accept from the Servicer delivery of the information required to be set forth in the Quarterly Reports in hard copy and in an agreed upon electronic format.
(ii) Not later than 12:00 noon New York time two four Business Days prior to each Determination Dateafter the end of the related Due Period, the Servicer shall provide to the Backup Servicer and the Backup Servicer shall accept delivery of tape in an agreed upon electronic format (the “Tape”) from the Servicer, which shall include but not be limited to the following information: (xA) for each Loan, the (1) Loan number, (2) legal name of the related ObligorLoan category (i.e., Real Estate Loan, Traditional Middle Market Loan, Large Middle Market Loan, Broadly Syndicated Loan or Structured Loan), (3) state or country of the Obligor’s chief executive officeprimary business, (4) SIC CodeXxxxx’x Industry Classification Group, (5) outstandings at cost, (6) type of Loan (i.e., term Term Loan, Delayed Draw Term Loan or revolving Revolving Loan), (76) type of security interest (i.e., senior First Lien Loan or subordinatedSecond Lien Loan), (8) 7) term payment type type, (i.e., amortizing or balloon)8) origination date, (9) origination maturity date, (10) maturity datebenchmark for Loan Rate, (11) benchmark for the Loan’s interest ratemargin, (12) margin, (13) frequency of Scheduled Payments, (13) controlling interest (i.e., whether the Loan is syndicated and whether the Issuer holds a majority of the outstanding indebtedness under such syndicated Loan), (14) controlling interestthe collection status (including number of days delinquent), (15) the collection Loan status, (16) the Outstanding Loan statusBalance, (17) the aggregate Outstanding Loan Balance and (18) the date the current S&P Rating with respect to such Loan was issued and the date the current S&P Rating with respect to such Loan expires, (y) the Aggregate Outstanding Loan Balance. With respect to its duties pursuant to this Section 5.15(b)(ii), and (z) the Loan Pool BalanceBackup Servicer shall have no duty to confirm that the Tape contains the foregoing information.
(iii) Prior to the related Payment Distribution Date, the Backup Servicer shall review the Quarterly Report to ensure that it is complete on its face and based solely on the information provided to the Backup Servicer pursuant to Section 5.15(b) that the following items in such Quarterly Report have been accurately calculated, if applicable, and reported: (A) the Aggregate Outstanding Loan Balance, (B) the Backup Servicing Fee, (C) the Loans that are 30 or more than 60 days Delinquent delinquent (other than Defaulted Charged-Off Loans), (D) the Defaulted Charged-Off Loans, and (E) the portfolio yield, (F) the principal and interest payments due to Noteholders and (G) the Loan Pool BalancePriority of Payments. The Backup Servicer shall notify the Indenture Trustee, the Initial Purchasers and the Servicer in writing of any disagreements discrepancies with the Quarterly Report based on such review not later than the Business Day preceding such Payment Distribution Date.
(iv) If the Servicer disagrees with the report provided under Section 5.22(b)(iiiparagraph (iii) above by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer, Servicer if possible, and notify the Indenture Trustee, the Swap Counterparties Initial Purchasers and the Initial Purchasers Rating Agencies of the resolution thereof. The Servicer hereby agrees to cooperate, cooperate at its own expense, expense with the Backup Servicer in reconciling any discrepancies herein. If, If within 20 days after the delivery of the report provided under Section 5.22(b)(iiiparagraph (iii) above by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Servicer, the Indenture Trustee, the Swap Counterparties Initial Purchasers and the Initial Purchasers Rating Agencies of the continued existence of such discrepancy. Following receipt of such notice by the Indenture Trustee, the Swap Counterparties Initial Purchasers and the Initial PurchasersRating Agencies, the Servicer shall deliver to the Indenture Trustee, the Swap Counterparties, the Initial Purchasers, the Backup Servicer and the Backup Servicer, Rating Agencies no later than the related Payment Date, Distribution Date a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto. With respect to the foregoing, the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer. The Backup Servicer shall have no liability for any errors in the content of such Tape, and, except as specifically provided herein, shall not be required to verify, recompute, reconcile or recalculate any such information or data.
(c) After the Servicer’s and Backup Servicer’s receipt of an effective notice of termination terminating or resignation by the Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer Servicer, under this Agreement, whether with respect to the Loans or otherwise, shall pass to and be vested in the Successor Servicer or the Backup Servicer, as applicable in accordance with Section 8.03 and the Backup Servicer such applicable party shall be deemed the successor Successor Servicer, subject to and in accordance with the provisions of Section 8.03, as long as the Backup such named Successor Servicer is not prohibited by Requirements of any Applicable Law from fulfilling the same, as evidenced by an Opinion of Counsel; provided, however, if Lyon Financial Services, Inc. as Backup Servicer becomes the Successor Servicer, it will not make any Scheduled Payment Advances and its obligations as Backup Servicer hereunder shall thereafter cease.
(d) Any Person (i) into which the Backup Servicer may be merged or consolidated, (ii) that may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) that may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement.
(e) As compensation for its backup servicing activities hereunder, the Backup Servicer shall be entitled to receive the Backup Servicing Fee. The Backup Servicing Fee from the Servicershall be calculated and payable quarterly in arrears on each Distribution Date. The Backup Servicer’s entitlement to receive the Backup Servicing Fee (other than due and unpaid Backup Servicing Servicer Fees owed through such date) shall cease on the earliest to occur of: (i) it becoming the Successor Servicer, (ii) its removal as Backup Servicer, or (iii) the termination of this Agreement.
(f) The Backup Servicer may be removed and replaced as provided in Section 8.10.
(g) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto that the Backup Servicer will be responsible for any misconduct or negligence on the part of such agents, attorneys or custodians acting on the routine and ordinary day-to-day operations for and on behalf of the Backup Servicer. Neither the Backup Servicer nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement, Agreement other than damages or expenses that result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement.
(g) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any Tape, certificate or other data or document delivered to the Backup Servicer hereunder or on which the Backup Servicer must rely in order to perform its obligations hereunder, and the parties hereto each agree to look only to the Servicer to perform such obligations. With respect to Section 5.22(b), the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer. The Backup Servicer shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of its respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), (iii) the invalidity or unenforceability of any Loan under Requirements of Law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Loan, or (v) the acts or omissions of any successor Backup Servicer.
Appears in 1 contract
Samples: Sale and Servicing Agreement (NewStar Financial, Inc.)
The Backup Servicer. (a) The Issuer, the Indenture Trustee and the Trust Depositor hereby appoint Xxxxx Wxxxx Fargo Bank, National Association to act as Backup Servicer in accordance with the terms of this Agreement. Xxxxx Wxxxx Fargo Bank, National Association hereby accepts such appointment and agrees to perform the duties and responsibilities with respect thereto set forth herein.
(b) The Backup Servicer shall perform the following duties and obligations:
(i) On or before the Closing Date, the Backup Servicer shall accept from the Servicer delivery of the information required to be set forth in the Quarterly Monthly Reports in hard copy and in an agreed upon electronic format.
(ii) Not later than 12:00 noon New York time two four Business Days prior to each Determination Dateafter the end of the related Due Period, the Servicer shall provide to the Backup Servicer and the Backup Servicer shall accept delivery of tape in an agreed upon electronic format (the “Tape”) from the Servicer, which shall include but not be limited to the following information: (xA) for each Loan, the (1) Loan number, (2) Loan category (i.e., asset based financed, healthcare secured, senior cash flow, subordinate cash flow or real estate) (3) legal name of the related Obligor, (34) state or country of the Obligor’s chief executive office, (4) SIC Codeprimary business, (5) outstandings at costNAICS Code, (6) type of Loan (i.e., term Partially Funded Term Loan, Fully Funded Term Loan, Reducing Revolving Loan or revolving Traditional Revolving Loan), (7) type of security interest (i.e., senior or subordinated), (8) term payment type (i.e., amortizing Amortizing Loans, Balloon Loans or balloonBullet Loans), (9) origination date, (10) maturity date, (11) benchmark for the Loan’s interest rateLoan Rate, (12) margin, (13) frequency of Scheduled Payments, (14) controlling interestinterest (i.e., whether the Loan is syndicated and whether the Issuer holds a majority of the outstanding indebtedness under such syndicated Loan), (15) the collection status, (16) the Loan status, and (17) the Outstanding Loan Balance and (18) the date the current S&P Rating with respect to such Loan was issued and the date the current S&P Rating with respect to such Loan expires, (yB) the Aggregate Outstanding Loan Balance. With respect to its duties pursuant to this Section 5.15(b)(ii), and (z) the Loan Pool BalanceBackup Servicer shall have no duty to confirm that the Tape contains the foregoing information.
(iii) Prior to the related Payment Remittance Date, the Backup Servicer shall review the Quarterly Monthly Report to ensure that it is complete on its face and that the following items in such Quarterly Monthly Report have been accurately calculated, if applicable, and reported: (A) the Aggregate Outstanding Loan Balance, (B) the Backup Servicing Fee, (C) the Loans that are 30 or more than one day delinquent in the case of Asset Based Revolvers and more than 60 days Delinquent delinquent in the case of all other Loans (other than Defaulted Charged—Off Loans), (D) the Defaulted Charged—Off Loans, and (E) the portfolio yield, (F) the principal and interest payments due to Noteholders and (G) the Loan Pool BalancePriority of Payments. The Backup Servicer shall notify the Indenture Trustee, each Hedge Counterparty, the Initial Purchasers and the Servicer of any disagreements discrepancies with the Quarterly Monthly Report based on such review not later than the Business Day preceding such Payment Remittance Date.
(iv) If the Servicer disagrees with the report provided under Section 5.22(b)(iiiparagraph (iii) above by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer, Servicer if possible, and notify the Indenture Trustee, the Swap Counterparties and each Hedge Counterparty, the Initial Purchasers and the Rating Agencies of the resolution thereof. The Servicer hereby agrees to cooperate, cooperate at its own expense, expense with the Backup Servicer in reconciling any discrepancies herein. If, If within 20 twenty (20) days after the delivery of the report provided under Section 5.22(b)(iiiparagraph (iii) above by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Servicer, the Indenture Trustee, the Swap Counterparties and each Hedge Counterparty, the Initial Purchasers and the Rating Agencies of the continued existence of such discrepancy. Following receipt of such notice by the Indenture Trustee, each Hedge Counterparty, the Swap Counterparties Initial Purchasers and the Initial PurchasersRating Agencies, the Servicer shall deliver to the Indenture Trustee, the Swap Counterpartieseach Hedge Counterparty, the Initial Purchasers, the Backup Servicer and the Backup Servicer, Rating Agencies no later than the related Payment Date, Remittance Date a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto. With respect to the foregoing, the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer.
(c) After the Servicer’s and Backup Servicer’s receipt of an effective notice of termination terminating or resignation by the Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer Servicer, under this Agreement, whether with respect to the Loans or otherwise, shall pass to and be vested in the Successor Servicer or the Backup Servicer, as applicable in accordance with Section 8.03 and the Backup Servicer such applicable party shall be deemed the successor Successor Servicer, subject to and in accordance with the provisions of Section 8.03, as long as the Backup such named Successor Servicer is not prohibited by any Requirements of Law from fulfilling the same, as evidenced by an Opinion of Counsel; provided, however, if Wxxxx Fargo as Backup Servicer becomes the Successor Servicer, it will not make any Scheduled Payment Advances.
(d) Any Person (i) into which the Backup Servicer may be merged or consolidated, (ii) that may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) that may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement.
(e) As compensation for its backup servicing activities hereunder, the Backup Servicer shall be entitled to receive the Backup Servicing Fee from the Servicer. The Backup Servicing Fee shall be calculated and payable monthly in arrears on each Remittance Date. The Backup Servicer’s entitlement to receive the Backup Servicing Fee (other than due and unpaid Backup Servicing Servicer Fees owed through such date) shall cease on the earliest to occur of: (i) it becoming the Successor Servicer, (ii) its removal as Backup Servicer, or (iii) the termination of this Agreement.
(f) The Backup Servicer may be removed with or without cause by the Majority Noteholders by notice given in writing to the Backup Servicer. In the event of any such removal, a replacement Backup Servicer may be appointed by Majority Noteholders.
(g) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto that the Backup Servicer will be responsible for any misconduct or negligence on the part of such agents, attorneys or custodians acting on the routine and ordinary day-to-day operations for and on behalf of the Backup Servicer. Neither the Backup Servicer nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement, Agreement other than damages or expenses that result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement.
(g) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any Tape, certificate or other data or document delivered to the Backup Servicer hereunder or on which the Backup Servicer must rely in order to perform its obligations hereunder, and the parties hereto each agree to look only to the Servicer to perform such obligations. With respect to Section 5.22(b), the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer. The Backup Servicer shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of its respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), (iii) the invalidity or unenforceability of any Loan under Requirements of Law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Loan, or (v) the acts or omissions of any successor Backup Servicer.
Appears in 1 contract
The Backup Servicer. (a) The Issuer, the Indenture Trustee and the Trust Depositor hereby appoint Xxxxx Fargo BankBank Minnesota, National Association to act as Backup Servicer in accordance with the terms of this Agreement. Xxxxx Fargo BankBank Minnesota, National Association hereby accepts such appointment and agrees to perform the duties and responsibilities with respect thereto set forth herein.
(b) The Backup Servicer shall perform the following duties and obligations:
(i) On or before the Closing Date, the Backup Servicer shall accept from the Servicer delivery of the information required to be set forth in the Quarterly Monthly Reports in hard copy and in an agreed upon electronic format.
(ii) Not later than 12:00 noon New York time two ten (10) Business Days prior to each Determination Dateafter the end of the related Due Period, the Servicer shall provide to the Backup Servicer and the Backup Servicer shall accept delivery of tape in an agreed upon electronic format (the “"Tape”") from the Servicer, which shall include but not be limited to the following information: (x) for each Loan, the (1) Loan number, (2) Loan category (i.e., asset based financed, healthcare secured, senior cash flow, subordinate cash flow, real estate or Pooled Debtor) (3) legal name of the related Obligor, (34) state or country of the Obligor’s chief 's Chief executive office, (4) SIC Code, (5) outstandings at costNAICS Code, (6) type of Loan (i.e., term Partially Funded Term Loan, Fully Funded Term Loan, Reducing Revolving Loan or revolving Traditional Revolving Loan), (7) type of security interest (i.e., senior or subordinated), (8) term payment type (i.e., amortizing Amortizing Loans, Balloon Loans or balloonBullet Loans), (9) origination date, (10) maturity date, (11) benchmark for the Loan’s interest rateLoan Rate, (12) margin, (13) frequency of Scheduled Payments, (14) controlling interestinterest (i.e., whether the Loan is syndicated and whether the Issuer holds a majority of the outstanding indebtedness under such syndicated Loan), (15) the collection status, (16) the Loan status, and (17) the Outstanding Loan Balance and (18) the date the current S&P Rating with respect to such Loan was issued and the date the current S&P Rating with respect to such Loan expires, (y) the Aggregate Outstanding Loan Balance. With respect to its duties pursuant to this subsection 5.15(b)(ii), and (z) the Loan Pool BalanceBackup Servicer shall have no duty to confirm that the Tape contains the foregoing information.
(iii) Prior to the related Payment Remittance Date, the Backup Servicer shall review the Quarterly Monthly Report to ensure that it is complete on its face and that the following items in such Quarterly Monthly Report have been accurately calculated, if applicable, and reported: (A) the Aggregate Outstanding Loan Balance, (B) the Backup Servicing Fee, (C) the Loans that are 30 or more than sixty (60) days Delinquent delinquent (other than Defaulted Charged-Off Loans), (D) the Defaulted Charged-Off Loans, and (E) the portfolio yield, (F) the principal and interest payments due to Noteholders and (G) the Loan Pool BalanceNoteholders. The Backup Servicer shall notify the Indenture Trustee, each Swap Counterparty, the Initial Purchasers Placement Agent and the Servicer of any disagreements discrepancies with the Quarterly Monthly Report based on such review not later than the Business Day preceding such Payment Remittance Date.
(iv) If the Servicer disagrees with the report provided under Section 5.22(b)(iiiparagraph (iii) above by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer, Servicer if possible, and notify the Indenture Trustee, each Swap Counterparty, the Swap Counterparties Placement Agent and the Initial Purchasers Rating Agencies of the resolution thereof. The Servicer hereby agrees to cooperate, cooperate at its own expense, expense with the Backup Servicer in reconciling any discrepancies herein. If, If within 20 twenty (20) days after the delivery of the report provided under Section 5.22(b)(iiiparagraph (iii) above by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Servicer, the Indenture Trustee, each Swap Counterparty, the Swap Counterparties Placement Agent and the Initial Purchasers Rating Agencies of the continued existence of such discrepancy. Following receipt of such notice by the Indenture Trustee, each Swap Counterparty, the Swap Counterparties Placement Agent and the Initial PurchasersRating Agencies, the Servicer shall deliver to the Indenture Trustee, the each Swap CounterpartiesCounterparty, the Initial PurchasersPlacement Agent, the Backup Servicer and the Backup Servicer, Rating Agencies no later than the related Payment Date, Remittance Date a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto. With respect to the foregoing, the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer.
(c) After the Servicer’s and Backup Servicer’s receipt of an effective notice of termination terminating or resignation by the Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer Servicer, under this Agreement, whether with respect to the Loans or otherwise, shall pass to and be vested in the Backup Servicer, Servicer and the Backup Servicer shall be deemed the successor Successor Servicer, subject to and in accordance with the provisions of Section 8.03, as long as the Backup Servicer is not prohibited by any Requirements of Law from fulfilling the same, as evidenced by an Opinion of Counsel; provided, however, if Xxxxx Fargo as Backup Servicer becomes the Successor Servicer, it will not make any Scheduled Payment Advances.
(d) Any Person (i) into which the Backup Servicer may be merged or consolidated, (ii) that may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) that may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement.
(e) As compensation for its backup servicing activities hereunder, the Backup Servicer shall be entitled to receive the Backup Servicing Fee from the Servicer. The Backup Servicing Fee shall be calculated and payable monthly in arrears on each Remittance Date. The Backup Servicer’s 's entitlement to receive the Backup Servicing Fee (other than due and unpaid Backup Servicing Servicer Fees owed through such date) shall cease on the earliest to occur of: (i) it becoming the Successor Servicer, (ii) its removal as Backup Servicer, or (iii) the termination of this Agreement.
(f) The Backup Servicer may be removed with or without cause by the Majority Noteholders by notice given in writing to the Backup Servicer. In the event of any such removal, a replacement Backup Servicer may be appointed by Majority Noteholders.
(g) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto that the Backup Servicer will be responsible for any misconduct or negligence on the part of such agents, attorneys or custodians acting on the routine and ordinary day-to-day operations for and on behalf of the Backup Servicer. Neither the Backup Servicer nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement, Agreement other than damages or expenses that result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement.
(g) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any Tape, certificate or other data or document delivered to the Backup Servicer hereunder or on which the Backup Servicer must rely in order to perform its obligations hereunder, and the parties hereto each agree to look only to the Servicer to perform such obligations. With respect to Section 5.22(b), the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer. The Backup Servicer shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of its respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), (iii) the invalidity or unenforceability of any Loan under Requirements of Law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Loan, or (v) the acts or omissions of any successor Backup Servicer.
Appears in 1 contract
The Backup Servicer. (a) The Issuer, the Indenture Trustee and the Trust Depositor hereby appoint Xxxxx Fargo BankBank Minnesota, National Association to act as Backup Servicer in accordance with the terms of this Agreement. Xxxxx Fargo BankBank Minnesota, National Association hereby accepts such appointment and agrees to perform the duties and responsibilities with respect thereto set forth herein.
(b) The Backup Servicer shall perform the following duties and obligations:
(i) On or before the Closing Date, the Backup Servicer shall accept from the Servicer delivery of the information required to be set forth in the Quarterly Monthly Reports in hard copy and in an agreed upon electronic format.
(ii) Not later than 12:00 noon New York time two four (4) Business Days prior to each Determination Dateafter the end of the related Due Period, the Servicer shall provide to the Backup Servicer and the Backup Servicer shall accept delivery of tape in an agreed upon electronic format (the “"Tape”") from the Servicer, which shall include but not be limited to the following information: (xA) for each Loan, the (1) Loan number, (2) Loan category (i.e., asset based financed, healthcare secured, senior cash flow, subordinate cash flow or real estate) (3) legal name of the related Obligor, (34) state or country of the Obligor’s chief executive office, (4) SIC Code's primary business, (5) outstandings at costNAICS Code, (6) type of Loan (i.e., term Partially Funded Term Loan, Fully Funded Term Loan, Reducing Revolving Loan or revolving Traditional Revolving Loan), (7) type of security interest (i.e., senior or subordinated), (8) term payment type (i.e., amortizing Amortizing Loans, Balloon Loans or balloonBullet Loans), (9) origination date, (10) maturity date, (11) benchmark for the Loan’s interest rateLoan Rate, (12) margin, (13) frequency of Scheduled Payments, (14) controlling interestinterest (i.e., whether the Loan is syndicated and whether the Issuer holds a majority of the outstanding indebtedness under such syndicated Loan), (15) the collection status, (16) the Loan status, and (17) the Outstanding Loan Balance and (18) the date the current S&P Rating with respect to such Loan was issued and the date the current S&P Rating with respect to such Loan expires, (yB) the Aggregate Outstanding Loan Balance. With respect to its duties pursuant to this Section 5.15(b)(ii), and (z) the Loan Pool BalanceBackup Servicer shall have no duty to confirm that the Tape contains the foregoing information.
(iii) Prior to the related Payment Remittance Date, the Backup Servicer shall review the Quarterly Monthly Report to ensure that it is complete on its face and that the following items in such Quarterly Monthly Report have been accurately calculated, if applicable, and reported: (A) the Aggregate Outstanding Loan Balance, (B) the Backup Servicing Fee, (C) the Loans that are 30 or more than one (1) day delinquent in the case of Asset Based Revolvers and more than sixty (60) days Delinquent delinquent in the case of all other Loans (other than Defaulted Charged-Off Loans), (D) the Defaulted Charged-Off Loans, and (E) the portfolio yield, (F) the principal and interest payments due to Noteholders and (G) the Loan Pool BalancePriority of Payments. The Backup Servicer shall notify the Indenture Trustee, each Hedge Counterparty, the Initial Purchasers and the Servicer of any disagreements discrepancies with the Quarterly Monthly Report based on such review not later than the Business Day preceding such Payment Remittance Date.
(iv) If the Servicer disagrees with the report provided under Section 5.22(b)(iiiparagraph (iii) above by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer, Servicer if possible, and notify the Indenture Trustee, the Swap Counterparties and each Hedge Counterparty, the Initial Purchasers and the Rating Agencies of the resolution thereof. The Servicer hereby agrees to cooperate, cooperate at its own expense, expense with the Backup Servicer in reconciling any discrepancies herein. If, If within 20 twenty (20) days after the delivery of the report provided under Section 5.22(b)(iiiparagraph (iii) above by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Servicer, the Indenture Trustee, the Swap Counterparties and each Hedge Counterparty, the Initial Purchasers and the Rating Agencies of the continued existence of such discrepancy. Following receipt of such notice by the Indenture Trustee, each Hedge Counterparty, the Swap Counterparties Initial Purchasers and the Initial PurchasersRating Agencies, the Servicer shall deliver to the Indenture Trustee, the Swap Counterpartieseach Hedge Counterparty, the Initial Purchasers, the Backup Servicer and the Backup Servicer, Rating Agencies no later than the related Payment Date, Remittance Date a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto. With respect to the foregoing, the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer.
(c) After the Servicer’s and Backup Servicer’s receipt of an effective notice of termination terminating or resignation by the Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer Servicer, under this Agreement, whether with respect to the Loans or otherwise, shall pass to and be vested in the Successor Servicer or the Backup Servicer, as applicable in accordance with Section 8.03 and the Backup Servicer such applicable party shall be deemed the successor Successor Servicer, subject to and in accordance with the provisions of Section 8.03, as long as the Backup such named Successor Servicer is not prohibited by any Requirements of Law from fulfilling the same, as evidenced by an Opinion of Counsel; provided, however, if Xxxxx Fargo as Backup Servicer becomes the Successor Servicer, it will not make any Scheduled Payment Advances.
(d) Any Person (i) into which the Backup Servicer may be merged or consolidated, (ii) that may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) that may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement.
(e) As compensation for its backup servicing activities hereunder, the Backup Servicer shall be entitled to receive the Backup Servicing Fee from the Servicer. The Backup Servicing Fee shall be calculated and payable monthly in arrears on each Remittance Date. The Backup Servicer’s 's entitlement to receive the Backup Servicing Fee (other than due and unpaid Backup Servicing Servicer Fees owed through such date) shall cease on the earliest to occur of: (i) it becoming the Successor Servicer, (ii) its removal as Backup Servicer, or (iii) the termination of this Agreement.
(f) The Backup Servicer may be removed with or without cause by the Majority Noteholders by notice given in writing to the Backup Servicer. In the event of any such removal, a replacement Backup Servicer may be appointed by Majority Noteholders.
(g) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto that the Backup Servicer will be responsible for any misconduct or negligence on the part of such agents, attorneys or custodians acting on the routine and ordinary day-to-day operations for and on behalf of the Backup Servicer. Neither the Backup Servicer nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement, Agreement other than damages or expenses that result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement.
(g) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any Tape, certificate or other data or document delivered to the Backup Servicer hereunder or on which the Backup Servicer must rely in order to perform its obligations hereunder, and the parties hereto each agree to look only to the Servicer to perform such obligations. With respect to Section 5.22(b), the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer. The Backup Servicer shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of its respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), (iii) the invalidity or unenforceability of any Loan under Requirements of Law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Loan, or (v) the acts or omissions of any successor Backup Servicer.
Appears in 1 contract
The Backup Servicer. (a) The Issuer, the Indenture Trustee and the Trust Depositor hereby appoint Xxxxx Fargo BankBank Minnesota, National Association to act as Backup Servicer in accordance with the terms of this Agreement. Xxxxx Fargo BankBank Minnesota, National Association hereby accepts such appointment and agrees to perform the duties and responsibilities with respect thereto set forth herein.
(b) The Backup Servicer shall perform the following duties and obligations:
(i) On or before the Closing Date, the Backup Servicer shall accept from the Servicer delivery of the information required to be set forth in the Quarterly Monthly Reports in hard copy and in an agreed upon electronic format.
(ii) Not later than 12:00 noon New York time two four (4) Business Days prior to each Determination Dateafter the end of the related Due Period, the Servicer shall provide to the Backup Servicer and the Backup Servicer shall accept delivery of tape in an agreed upon electronic format (the “"Tape”") from the Servicer, which shall include but not be limited to the following information: (xA) for each Loan, the ----
(1) Loan number, (2) Loan category (i.e., asset based financed, healthcare secured, senior cash flow, subordinate cash flow or real estate) (3) legal name of the related Obligor, (34) state or country of the Obligor’s chief executive office, (4) SIC Code's primary business, (5) outstandings at costNAICS Code, (6) type of Loan (i.e., term Partially Funded Term Loan, Fully Funded Term Loan, Reducing Revolving Loan or revolving Traditional Revolving Loan), (7) type of security interest (i.e., senior or subordinated), (8) term payment type (i.e., amortizing Amortizing Loans, Balloon Loans or balloonBullet Loans), (9) origination date, (10) maturity date, (11) benchmark for the Loan’s interest rateLoan Rate, (12) margin, (13) frequency of Scheduled Payments, (14) controlling interestinterest (i.e., whether the Loan is syndicated and whether the Issuer holds a majority of the outstanding indebtedness under such syndicated Loan), (15) the collection status, (16) the Loan status, and (17) the Outstanding Loan Balance and (18) the date the current S&P Rating with respect to such Loan was issued and the date the current S&P Rating with respect to such Loan expires, (yB) the Aggregate Outstanding Loan Balance, and (z) the Loan Pool Balance.
(iii) Prior to the related Payment Date, the Backup Servicer shall review the Quarterly Report to ensure that it is complete on its face and that the following items in such Quarterly Report have been accurately calculated, if applicable, and reported: (A) the Aggregate Outstanding Loan Balance, (B) the Backup Servicing Fee, (C) the Loans that are 30 or more days Delinquent (other than Defaulted Loans), (D) the Defaulted Loans, (E) the portfolio yield, (F) the principal and interest payments due to Noteholders and (G) the Loan Pool Balance. The Backup Servicer shall notify the Indenture Trustee, the Initial Purchasers and the Servicer of any disagreements with the Quarterly Report based on such review not later than the Business Day preceding such Payment Date.
(iv) If the Servicer disagrees with the report provided under Section 5.22(b)(iii) by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer, if possible, and notify the Indenture Trustee, the Swap Counterparties and the Initial Purchasers of the resolution thereof. The Servicer hereby agrees to cooperate, at its own expense, with the Backup Servicer in reconciling any discrepancies herein. If, within 20 days after the delivery of the report provided under Section 5.22(b)(iii) by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Servicer, the Indenture Trustee, the Swap Counterparties and the Initial Purchasers of the continued existence of such discrepancy. Following receipt of such notice by the Indenture Trustee, the Swap Counterparties and the Initial Purchasers, the Servicer shall deliver to the Indenture Trustee, the Swap Counterparties, the Initial Purchasers, and the Backup Servicer, no later than the related Payment Date, a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto.
(c) After the Servicer’s and Backup Servicer’s receipt of an effective notice of termination terminating the Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer under this Agreement, whether with respect to the Loans or otherwise, shall pass to and be vested in the Backup Servicer, and the Backup Servicer shall be deemed the successor Servicer, subject to and in accordance with the provisions of Section 8.03, as long as the Backup Servicer is not prohibited by Requirements of Law from fulfilling the same, as evidenced by an Opinion of Counsel.
(d) Any Person (i) into which the Backup Servicer may be merged or consolidated, (ii) that may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) that may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement.
(e) As compensation for its backup servicing activities hereunder, the Backup Servicer shall be entitled to receive the Backup Servicing Fee from the Servicer. The Backup Servicer’s entitlement to receive the Backup Servicing Fee (other than due and unpaid Backup Servicing Fees owed through such date) shall cease on the earliest to occur of: (i) it becoming the Successor Servicer, (ii) its removal as Backup Servicer, or (iii) the termination of this Agreement.
(f) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto that the Backup Servicer will be responsible for any misconduct or negligence on the part of such agents, attorneys or custodians acting on the routine and ordinary day-to-day operations for and on behalf of the Backup Servicer. Neither the Backup Servicer nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement, other than damages or expenses that result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement.
(g) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any Tape, certificate or other data or document delivered to the Backup Servicer hereunder or on which the Backup Servicer must rely in order to perform its obligations hereunder, and the parties hereto each agree to look only to the Servicer to perform such obligations. With respect to Section 5.22(b), the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer. The Backup Servicer shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of its respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), (iii) the invalidity or unenforceability of any Loan under Requirements of Law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Loan, or (v) the acts or omissions of any successor Backup Servicer.
Appears in 1 contract
The Backup Servicer. (a) The IssuerTrust, the Indenture Trustee and the Trust Depositor hereby appoint Xxxxx Fargo BankBank Minnesota, National Association to act as Backup Servicer in accordance with the terms of this Agreement. Xxxxx Fargo BankBank Minnesota, National Association hereby accepts such appointment and agrees to perform the duties and responsibilities with respect thereto set forth herein.
(b) The Backup Servicer shall perform the following duties and obligations:
(i) On or before the Closing Date, the Backup Servicer shall accept from the Servicer delivery of the information required to be set forth in the Quarterly Monthly Reports in hard copy and in an agreed upon electronic format.
(ii) Not later than 12:00 noon New York time two (2) Business Days prior to each Determination Date, the Servicer shall provide to the Backup Servicer and the Backup Servicer shall accept delivery of tape in an agreed upon electronic format (the “Tape”"TAPE") from the Servicer, which shall include but not be limited to the following information: (x) for each Loan, the (1) Loan number, (2) legal name and number of the related Obligor, (3) state or country of the Obligor’s chief executive office, (4) SIC Code, (5) outstandings at cost, (6) type of Loan (i.e., term Loan or revolving Loan), (7) type of security interest (i.e., senior or subordinated), (8) term payment type (i.e., amortizing or balloon), (9) origination date, (10) maturity date, (11) benchmark for the Loan’s interest rate, (12) margin, (13) frequency of Scheduled Payments, (14) controlling interest, (15) the collection status, (16) the Loan status, (17) the date of each Scheduled Payment and the Outstanding Loan Balance and (18) the date the current S&P Rating with respect to such Loan was issued and the date the current S&P Rating with respect to such Loan expires, (y) the Aggregate Outstanding Loan Balance, and (z) the Loan Pool Balance.
(iii) Prior to the related Payment Date, the Backup Servicer shall review the Quarterly Monthly Report to ensure that it is complete on its face and that the following items in such Quarterly Monthly Report have been accurately calculated, if applicable, and reported: (A) the Aggregate Outstanding Loan Balance, (B) the Backup Servicing Fee, (C) the Loans that are 30 or more days Delinquent (other than Defaulted Loans), (D) the Defaulted Loans, (E) the portfolio yieldPortfolio Yield, (F) the principal Default Ratio for the current Collection Period and interest payments due to Noteholders and (G) the Loan Pool Balancetwo immediately preceding Collection Periods. The Backup Servicer shall notify the Indenture Trustee, the Initial Purchasers Placement Agent and the Servicer of any disagreements with the Quarterly Monthly Report based on such review not later than the Business Day preceding such Payment DateDate to such Persons.
(iv) If the Servicer disagrees with the report provided under Section 5.22(b)(iiiparagraph (iii) above by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer, Servicer if possible, and notify the Indenture Trustee, the Swap Counterparties Trustee and the Initial Purchasers Placement Agent of the resolution thereof. The Servicer hereby agrees to cooperate, cooperate at its own expense, with the Backup Servicer in reconciling any discrepancies herein. If, If within 20 days after the delivery of the report provided under Section 5.22(b)(iiiparagraph (iii) above by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Servicer, the Indenture Trustee, the Swap Counterparties Trustee and the Initial Purchasers Placement Agent of the continued existence of such discrepancy. Following receipt of such notice by the Indenture Trustee, the Swap Counterparties Trustee and the Initial PurchasersPlacement Agent, the Servicer shall deliver to the Indenture Trustee, Trustee and the Swap Counterparties, the Initial PurchasersPlacement Agent, and the Backup Servicer, Servicer no later than the related Payment Date, Date a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto. With respect to the foregoing, the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer.
(c) After the Servicer’s and Backup Servicer’s receipt of an effective termination notice of termination terminating by the Servicer and the Backup Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer Servicer, under this Agreement, whether with respect to the Loans or otherwise, otherwise shall pass to and be vested in the Backup Servicer, Servicer and the Backup Servicer shall be deemed the successor Successor Servicer, subject to and in accordance with the provisions of Section SECTION 8.03, as long as the Backup Servicer is not prohibited by Requirements an applicable provision of Law law from fulfilling the same, as evidenced by an Opinion of Counsel.
(d) Any Person (i) into which the Backup Servicer may be merged or consolidated, (ii) that may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) that may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement.
(e) As compensation for its backup servicing activities hereunder, the Backup Servicer shall be entitled to receive the Backup Servicing Fee from the Servicer. The Backup Servicer’s 's entitlement to receive the Backup Servicing Fee (other than due and unpaid Backup Servicing Servicer Fees owed through such date) shall cease on the earliest to occur of: (i) it becoming the Successor Servicer, (ii) its removal as Backup Servicer, or (iii) the termination of this Agreement.
(f) The Backup Servicer may be removed with or without cause by the Required Holders by notice given in writing to the Backup Servicer. In the event of any such removal, a replacement Backup Servicer may be appointed by Required Holders.
(g) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto that the Backup Servicer will be responsible for any misconduct or negligence on the part of such agents, attorneys or custodians acting on the routine and ordinary day-to-day operations for and on behalf of the Backup Servicer. Neither the Backup Servicer nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement, Agreement other than damages or expenses that result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement.
(g) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any Tape, certificate or other data or document delivered to the Backup Servicer hereunder or on which the Backup Servicer must rely in order to perform its obligations hereunder, and the parties hereto each agree to look only to the Servicer to perform such obligations. With respect to Section 5.22(b), the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer. The Backup Servicer shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of its respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), (iii) the invalidity or unenforceability of any Loan under Requirements of Law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Loan, or (v) the acts or omissions of any successor Backup Servicer.
Appears in 1 contract
Samples: Transfer Agreement (American Capital Strategies LTD)
The Backup Servicer. (a) The Issuer, the Indenture Trustee and the Trust Depositor hereby appoint Xxxxx Wells Fargo BankBank Minnesota, National Association to act as Backup Servicer Sexxxxxr in accordance with the terms of this Agreement. Xxxxx Wells Fargo BankBank Minnesota, National Association hereby accepts such appointment xxxxintment and agrees to perform the duties and responsibilities with respect thereto set forth herein.
(b) The Backup Servicer shall perform the following duties and obligations:
(i) On or before the Closing Date, the Backup Servicer shall accept from the Servicer delivery of the information required to be set forth in the Quarterly Monthly Reports in hard copy and in an agreed upon electronic format.
(ii) Not later than 12:00 noon New York time two ten (10) Business Days prior to each Determination Dateafter the end of the related Due Period, the Servicer shall provide to the Backup Servicer and the Backup Servicer shall accept delivery of tape in an agreed upon electronic format (the “"Tape”") from the Servicer, which shall include but not be limited to the following information: (x) for each Loan, the (1) Loan number, (2) Loan category (i.e., asset based financed, healthcare secured, senior cash flow, subordinate cash flow, real estate or Pooled Debtor) (3) legal name of the related Obligor, (34) state or country of the Obligor’s chief executive office, (4) SIC Code's primary business, (5) outstandings at costNAICS Code, (6) type of Loan (i.e., term Partially Funded Term Loan, Fully Funded Term Loan, Reducing Revolving Loan or revolving Traditional Revolving Loan), (7) type of security interest (i.e., senior or subordinated), (8) term payment type (i.e., amortizing Amortizing Loans, Balloon Loans or balloonBullet Loans), (9) origination date, (10) maturity date, (11) benchmark for the Loan’s interest rateLoan Rate, (12) margin, (13) frequency of Scheduled Payments, (14) controlling interestinterest (i.e., whether the Loan is syndicated and whether the Issuer holds a majority of the outstanding indebtedness under such syndicated Loan), (15) the collection status, (16) the Loan status, and (17) the Outstanding Loan Balance and (18) the date the current S&P Rating with respect to such Loan was issued and the date the current S&P Rating with respect to such Loan expires, (y) the Aggregate Outstanding Loan Balance. With respect to its duties pursuant to this subsection 5.15(b)(ii), and (z) the Loan Pool BalanceBackup Servicer shall have no duty to confirm that the Tape contains the foregoing information.
(iii) Prior to the related Payment Remittance Date, the Backup Servicer shall review the Quarterly Monthly Report to ensure that it is complete on its face and that the following items in such Quarterly Monthly Report have been accurately calculated, if applicable, and reported: (A) the Aggregate Outstanding Loan Balance, (B) the Backup Servicing Fee, (C) the Loans that are 30 or more than one (1) day delinquent in the case of Asset Based Revolvers and more than sixty (60) days Delinquent delinquent in the case of all other Loans (other than Defaulted Charged - Off Loans), (D) the Defaulted Charged - Off Loans, and (E) the portfolio yield, (F) the principal and interest payments due to Noteholders and (G) the Loan Pool Balance. The Backup Servicer shall notify the Indenture Trustee, the Initial Purchasers and the Servicer of any disagreements with the Quarterly Report based on such review not later than the Business Day preceding such Payment Date.
(iv) If the Servicer disagrees with the report provided under Section 5.22(b)(iii) by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer, if possible, and notify the Indenture Trustee, the Swap Counterparties and the Initial Purchasers of the resolution thereof. The Servicer hereby agrees to cooperate, at its own expense, with the Backup Servicer in reconciling any discrepancies herein. If, within 20 days after the delivery of the report provided under Section 5.22(b)(iii) by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Servicer, the Indenture Trustee, the Swap Counterparties and the Initial Purchasers of the continued existence of such discrepancy. Following receipt of such notice by the Indenture Trustee, the Swap Counterparties and the Initial Purchasers, the Servicer shall deliver to the Indenture Trustee, the Swap Counterparties, the Initial Purchasers, and the Backup Servicer, no later than the related Payment Date, a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto.
(c) After the Servicer’s and Backup Servicer’s receipt of an effective notice of termination terminating the Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer under this Agreement, whether with respect to the Loans or otherwise, shall pass to and be vested in the Backup Servicer, and the Backup Servicer shall be deemed the successor Servicer, subject to and in accordance with the provisions of Section 8.03, as long as the Backup Servicer is not prohibited by Requirements of Law from fulfilling the same, as evidenced by an Opinion of Counsel.
(d) Any Person (i) into which the Backup Servicer may be merged or consolidated, (ii) that may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) that may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement.
(e) As compensation for its backup servicing activities hereunder, the Backup Servicer shall be entitled to receive the Backup Servicing Fee from the Servicer. The Backup Servicer’s entitlement to receive the Backup Servicing Fee (other than due and unpaid Backup Servicing Fees owed through such date) shall cease on the earliest to occur of: (i) it becoming the Successor Servicer, (ii) its removal as Backup Servicer, or (iii) the termination of this Agreement.
(f) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto that the Backup Servicer will be responsible for any misconduct or negligence on the part of such agents, attorneys or custodians acting on the routine and ordinary day-to-day operations for and on behalf of the Backup Servicer. Neither the Backup Servicer nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement, other than damages or expenses that result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement.
(g) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any Tape, certificate or other data or document delivered to the Backup Servicer hereunder or on which the Backup Servicer must rely in order to perform its obligations hereunder, and the parties hereto each agree to look only to the Servicer to perform such obligations. With respect to Section 5.22(b), the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer. The Backup Servicer shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of its respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), (iii) the invalidity or unenforceability of any Loan under Requirements of Law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Loan, or (v) the acts or omissions of any successor Backup Servicer.
Appears in 1 contract
The Backup Servicer. (a) The Issuer, the Indenture Trustee and the Trust Depositor hereby appoint Xxxxx Wxxxx Fargo Bank, National Association to act as Backup Servicer in accordance with the terms of this Agreement. Xxxxx Wxxxx Fargo Bank, National Association hereby accepts such appointment and agrees to perform the duties and responsibilities with respect thereto set forth herein.
(b) The Backup Servicer shall perform the following duties and obligations:
(i) On or before the Closing Date, the Backup Servicer shall accept from the Servicer delivery of the information required to be set forth in the Quarterly Monthly Reports in hard copy and in an agreed upon electronic format.
(ii) Not later than 12:00 noon New York time two four Business Days prior to each Determination Dateafter the end of the related Due Period, the Servicer shall provide to the Backup Servicer and the Backup Servicer shall accept delivery of tape in an agreed upon electronic format (the “Tape”) from the Servicer, which shall include but not be limited to the following information: (xA) for each Loan, the (1) Loan number, (2) Loan category (i.e., asset based financed, healthcare secured, senior cash flow, subordinate cash flow or real estate) (3) legal name of the related Obligor, (34) state or country of the Obligor’s chief executive office, (4) SIC Codeprimary business, (5) outstandings at costNAICS Code, (6) type of Loan (i.e., term Partially Funded Term Loan, Fully Funded Term Loan, Reducing Revolving Loan or revolving Traditional Revolving Loan), (7) type of security interest (i.e., senior or subordinated), (8) term payment type (i.e., amortizing Amortizing Loans, Balloon Loans or balloonBullet Loans), (9) origination date, (10) maturity date, (11) benchmark for the Loan’s interest rateLoan Rate, (12) margin, (13) frequency of Scheduled Payments, (14) controlling interestinterest (i.e., whether the Loan is syndicated and whether the Issuer holds a majority of the outstanding indebtedness under such syndicated Loan), (15) the collection status, (16) the Loan status, and (17) the Outstanding Loan Balance and (18) the date the current S&P Rating with respect to such Loan was issued and the date the current S&P Rating with respect to such Loan expires, (yB) the Aggregate Outstanding Loan Balance. With respect to its duties pursuant to this Section 5.15(b)(ii), and (z) the Loan Pool BalanceBackup Servicer shall have no duty to confirm that the Tape contains the foregoing information.
(iii) Prior to the related Payment Remittance Date, the Backup Servicer shall review the Quarterly Monthly Report to ensure that it is complete on its face and that the following items in such Quarterly Monthly Report have been accurately calculated, if applicable, and reported: (A) the Aggregate Outstanding Loan Balance, (B) the Backup Servicing Fee, (C) the Loans that are 30 or more than one day delinquent in the case of Asset Based Revolvers and more than 60 days Delinquent delinquent in the case of all other Loans (other than Defaulted Charged–Off Loans), (D) the Defaulted Charged–Off Loans, and (E) the portfolio yield, (F) the principal and interest payments due to Noteholders and (G) the Loan Pool BalancePriority of Payments. The Backup Servicer shall notify the Indenture Trustee, each Hedge Counterparty, the Initial Purchasers and the Servicer of any disagreements discrepancies with the Quarterly Monthly Report based on such review not later than the Business Day preceding such Payment Remittance Date.
(iv) If the Servicer disagrees with the report provided under Section 5.22(b)(iiiparagraph (iii) above by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer, Servicer if possible, and notify the Indenture Trustee, the Swap Counterparties and each Hedge Counterparty, the Initial Purchasers and the Rating Agencies of the resolution thereof. The Servicer hereby agrees to cooperate, cooperate at its own expense, expense with the Backup Servicer in reconciling any discrepancies herein. If, If within 20 twenty (20) days after the delivery of the report provided under Section 5.22(b)(iiiparagraph (iii) above by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Servicer, the Indenture Trustee, the Swap Counterparties and each Hedge Counterparty, the Initial Purchasers and the Rating Agencies of the continued existence of such discrepancy. Following receipt of such notice by the Indenture Trustee, each Hedge Counterparty, the Swap Counterparties Initial Purchasers and the Initial PurchasersRating Agencies, the Servicer shall deliver to the Indenture Trustee, the Swap Counterpartieseach Hedge Counterparty, the Initial Purchasers, the Backup Servicer and the Backup Servicer, Rating Agencies no later than the related Payment Date, Remittance Date a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto. With respect to the foregoing, the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer.
(c) After the Servicer’s and Backup Servicer’s receipt of an effective notice of termination terminating or resignation by the Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer Servicer, under this Agreement, whether with respect to the Loans or otherwise, shall pass to and be vested in the Successor Servicer or the Backup Servicer, as applicable in accordance with Section 8.03 and the Backup Servicer such applicable party shall be deemed the successor Successor Servicer, subject to and in accordance with the provisions of Section 8.03, as long as the Backup such named Successor Servicer is not prohibited by any Requirements of Law from fulfilling the same, as evidenced by an Opinion of Counsel; provided, however, if Wxxxx Fargo as Backup Servicer becomes the Successor Servicer, it will not make any Scheduled Payment Advances.
(d) Any Person (i) into which the Backup Servicer may be merged or consolidated, (ii) that may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) that may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement.
(e) As compensation for its backup servicing activities hereunder, the Backup Servicer shall be entitled to receive the Backup Servicing Fee from the Servicer. The Backup Servicing Fee shall be calculated and payable monthly in arrears on each Remittance Date. The Backup Servicer’s entitlement to receive the Backup Servicing Fee (other than due and unpaid Backup Servicing Servicer Fees owed through such date) shall cease on the earliest to occur of: (i) it becoming the Successor Servicer, (ii) its removal as Backup Servicer, or (iii) the termination of this Agreement.
(f) The Backup Servicer may be removed with or without cause by the Majority Noteholders by notice given in writing to the Backup Servicer. In the event of any such removal, a replacement Backup Servicer may be appointed by Majority Noteholders.
(g) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto that the Backup Servicer will be responsible for any misconduct or negligence on the part of such agents, attorneys or custodians acting on the routine and ordinary day-to-day operations for and on behalf of the Backup Servicer. Neither the Backup Servicer nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement, Agreement other than damages or expenses that result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement.
(g) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any Tape, certificate or other data or document delivered to the Backup Servicer hereunder or on which the Backup Servicer must rely in order to perform its obligations hereunder, and the parties hereto each agree to look only to the Servicer to perform such obligations. With respect to Section 5.22(b), the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer. The Backup Servicer shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of its respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), (iii) the invalidity or unenforceability of any Loan under Requirements of Law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Loan, or (v) the acts or omissions of any successor Backup Servicer.
Appears in 1 contract
The Backup Servicer. (a) The Issuer, the Indenture Trustee and the Trust Depositor hereby appoint Xxxxx Wxxxx Fargo Bank, National Association to act as Backup Servicer in accordance with the terms of this Agreement. Xxxxx Wxxxx Fargo Bank, National Association hereby accepts such appointment and agrees to perform the duties and responsibilities with respect thereto set forth herein.
(b) The Backup Servicer shall perform the following duties and obligations:
(i) On or before the Closing Date, the Backup Servicer shall accept from the Servicer delivery of the information required to be set forth in the Quarterly Monthly Reports in hard copy and in an agreed upon electronic format.
(ii) Not later than 12:00 noon New York time two four Business Days prior to each Determination Dateafter the end of the related Due Period, the Servicer shall provide to the Backup Servicer and the Backup Servicer shall accept delivery of tape in an agreed upon electronic format (the “Tape”) from the Servicer, which shall include but not be limited to the following information: (xA) for each Loan, the (1) Loan number, (2) legal name of the related ObligorLoan category (i.e., asset based financed, healthcare secured, senior cash flow, subordinate cash flow or real estate) (3) state or country of the Obligor’s chief executive officeprimary business, (4) SIC NAICS Code, (5) outstandings at cost, (6) type of Loan (i.e., term Partially Funded Term Loan, Fully Funded Term Loan or revolving Revolving Loan), (76) type of security interest (i.e., senior or subordinated), (8) 7) term payment type (i.e., amortizing Amortizing Loans, Balloon Loans or balloonBullet Loans), (8) origination date, (9) origination maturity date, (10) maturity datebenchmark for Loan Rate, (11) benchmark for the Loan’s interest ratemargin, (12) margin, (13) frequency of Scheduled Payments, (1413) controlling interestinterest (i.e., whether the Loan is syndicated and whether the Issuer holds a majority of the outstanding indebtedness under such syndicated Loan), (1514) the collection status, (1615) the Loan status, and (1716) the Outstanding Loan Balance and (18) the date the current S&P Rating with respect to such Loan was issued and the date the current S&P Rating with respect to such Loan expires, (yB) the Aggregate Outstanding Loan Balance. With respect to its duties pursuant to this Section 5.15(b)(ii), and (z) the Loan Pool BalanceBackup Servicer shall have no duty to confirm that the Tape contains the foregoing information.
(iii) Prior to the related Payment Date, the Backup Servicer shall review the Quarterly Monthly Report to ensure that it is complete on its face and that the following items in such Quarterly Monthly Report have been accurately calculated, if applicable, and reported: (A) the Aggregate Outstanding Loan Balance, (B) the Backup Servicing Fee, (C) the Loans that are 30 or more than one day delinquent in the case of Asset Based Revolvers and more than 60 days Delinquent delinquent in the case of all other Loans (other than Defaulted Charged–Off Loans), (D) the Defaulted Charged–Off Loans, and (E) the portfolio yield, (F) the principal and interest payments due to Noteholders and (G) the Loan Pool BalancePriority of Payments. The Backup Servicer shall notify the Indenture Trustee, each Hedge Counterparty, the Initial Purchasers and the Servicer of any disagreements discrepancies with the Quarterly Monthly Report based on such review not later than the Business Day preceding such Payment Date.
(iv) If the Servicer disagrees with the report provided under Section 5.22(b)(iiiparagraph (iii) above by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer, Servicer if possible, and notify the Indenture Trustee, the Swap Counterparties and each Hedge Counterparty, the Initial Purchasers and the Rating Agencies of the resolution thereof. The Servicer hereby agrees to cooperate, cooperate at its own expense, expense with the Backup Servicer in reconciling any discrepancies herein. If, If within 20 days after the delivery of the report provided under Section 5.22(b)(iiiparagraph (iii) above by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Servicer, the Indenture Trustee, the Swap Counterparties and each Hedge Counterparty, the Initial Purchasers and the Rating Agencies of the continued existence of such discrepancy. Following receipt of such notice by the Indenture Trustee, each Hedge Counterparty, the Swap Counterparties Initial Purchasers and the Initial PurchasersRating Agencies, the Servicer shall deliver to the Indenture Trustee, the Swap Counterpartieseach Hedge Counterparty, the Initial Purchasers, the Backup Servicer and the Backup Servicer, Rating Agencies no later than the related Payment Date, Date a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto. With respect to the foregoing, the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer.
(c) After the Servicer’s and Backup Servicer’s receipt of an effective notice of termination terminating or resignation by the Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer Servicer, under this Agreement, whether with respect to the Loans or otherwise, shall pass to and be vested in the Successor Servicer or the Backup Servicer, as applicable in accordance with Section 8.03 and the Backup Servicer such applicable party shall be deemed the successor Successor Servicer, subject to and in accordance with the provisions of Section 8.03, as long as the Backup such named Successor Servicer is not prohibited by Requirements of any Applicable Law from fulfilling the same, as evidenced by an Opinion of Counsel; provided that if Wxxxx Fargo as Backup Servicer becomes the Successor Servicer, it will not make any Scheduled Payment Advances.
(d) Any Person (i) into which the Backup Servicer may be merged or consolidated, (ii) that may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) that may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement.
(e) As compensation for its backup servicing activities hereunder, the Backup Servicer shall be entitled to receive the Backup Servicing Fee from the Servicer. The Backup Servicing Fee shall be calculated and payable monthly in arrears on each Payment Date. The Backup Servicer’s entitlement to receive the Backup Servicing Fee (other than due and unpaid Backup Servicing Fees owed through such date) shall cease on the earliest to occur of: (i) it becoming the Successor Servicer, (ii) its removal as Backup Servicer, or (iii) the termination of this Agreement.
(f) The Backup Servicer may be removed and replaced as provided in Section 8.10.
(g) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto that the Backup Servicer will be responsible for any misconduct or negligence on the part of such agents, attorneys or custodians acting on the routine and ordinary day-to-day operations for and on behalf of the Backup Servicer. Neither the Backup Servicer nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement, other than damages or expenses that result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement.
(g) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any Tape, certificate or other data or document delivered to the Backup Servicer hereunder or on which the Backup Servicer must rely in order to perform its obligations hereunder, and the parties hereto each agree to look only to the Servicer to perform such obligations. With respect to Section 5.22(b), the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer. The Backup Servicer shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of its respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), (iii) the invalidity or unenforceability of any Loan under Requirements of Law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Loan, or (v) the acts or omissions of any successor Backup Servicer.the
Appears in 1 contract
The Backup Servicer. (a) The Issuer, the Indenture Trustee and the Trust Depositor hereby appoint Xxxxx Wxxxx Fargo Bank, National Association to act as Backup Servicer in accordance with the terms of this Agreement. Xxxxx Wxxxx Fargo Bank, National Association hereby accepts such appointment and agrees to perform the duties and responsibilities with respect thereto set forth herein.
(b) The Backup Servicer shall perform the following duties and obligations:
(i) On or before the Closing Date, the Backup Servicer shall accept from the Servicer delivery of the information required to be set forth in the Quarterly Monthly Reports in hard copy and in an agreed upon electronic format.
(ii) Not later than 12:00 noon New York time two four Business Days prior to each Determination Dateafter the end of the related Due Period, the Servicer shall provide to the Backup Servicer and the Backup Servicer shall accept delivery of tape in an agreed upon electronic format (the “Tape”) from the Servicer, which shall include but not be limited to the following information: (xA) for each Loan, the (1) Loan number, (2) legal name of the related ObligorLoan category (i.e., asset based financed, healthcare secured, senior cash flow, subordinate cash flow or real estate) (3) state or country of the Obligor’s chief executive officeprimary business, (4) SIC NAICS Code, (5) outstandings at cost, (6) type of Loan (i.e., term Partially Funded Term Loan, Fully Funded Term Loan, Reducing Revolving Loan or revolving Traditional Revolving Loan), (76) type of security interest (i.e., senior or subordinated), (8) 7) term payment type (i.e., amortizing Amortizing Loans, Balloon Loans or balloonBullet Loans), (8) origination date, (9) origination maturity date, (10) maturity datebenchmark for Loan Rate, (11) benchmark for the Loan’s interest ratemargin, (12) margin, (13) frequency of Scheduled Payments, (1413) controlling interestinterest (i.e., whether the Loan is syndicated and whether the Issuer holds a majority of the outstanding indebtedness under such syndicated Loan), (1514) the collection status, (1615) the Loan status, and (1716) the Outstanding Loan Balance and (18) the date the current S&P Rating with respect to such Loan was issued and the date the current S&P Rating with respect to such Loan expires, (yB) the Aggregate Outstanding Loan Balance. With respect to its duties pursuant to this Section 5.15(b)(ii), and (z) the Loan Pool BalanceBackup Servicer shall have no duty to confirm that the Tape contains the foregoing information.
(iii) Prior to the related Payment Remittance Date, the Backup Servicer shall review the Quarterly Monthly Report to ensure that it is complete on its face and that the following items in such Quarterly Monthly Report have been accurately calculated, if applicable, and reported: (A) the Aggregate Outstanding Loan Balance, (B) the Backup Servicing Fee, (C) the Loans that are 30 or more than one day delinquent in the case of Asset Based Revolvers and more than 60 days Delinquent delinquent in the case of all other Loans (other than Defaulted Charged–Off Loans), (D) the Defaulted Charged–Off Loans, and (E) the portfolio yield, (F) the principal and interest payments due to Noteholders and (G) the Loan Pool BalancePriority of Payments. The Backup Servicer shall notify the Indenture Trustee, each Hedge Counterparty, the Initial Purchasers and the Servicer of any disagreements discrepancies with the Quarterly Monthly Report based on such review not later than the Business Day preceding such Payment Remittance Date.
(iv) If the Servicer disagrees with the report provided under Section 5.22(b)(iiiparagraph (iii) above by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer, Servicer if possible, and notify the Indenture Trustee, the Swap Counterparties and each Hedge Counterparty, the Initial Purchasers and the Rating Agencies of the resolution thereof. The Servicer hereby agrees to cooperate, cooperate at its own expense, expense with the Backup Servicer in reconciling any discrepancies herein. If, If within 20 days after the delivery of the report provided under Section 5.22(b)(iiiparagraph (iii) above by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Servicer, the Indenture Trustee, the Swap Counterparties and each Hedge Counterparty, the Initial Purchasers and the Rating Agencies of the continued existence of such discrepancy. Following receipt of such notice by the Indenture Trustee, each Hedge Counterparty, the Swap Counterparties Initial Purchasers and the Initial PurchasersRating Agencies, the Servicer shall deliver to the Indenture Trustee, the Swap Counterpartieseach Hedge Counterparty, the Initial Purchasers, the Backup Servicer and the Backup Servicer, Rating Agencies no later than the related Payment Date, Remittance Date a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto. With respect to the foregoing, the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer.
(c) After the Servicer’s and Backup Servicer’s receipt of an effective notice of termination terminating or resignation by the Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer Servicer, under this Agreement, whether with respect to the Loans or otherwise, shall pass to and be vested in the Successor Servicer or the Backup Servicer, as applicable in accordance with Section 8.03 and the Backup Servicer such applicable party shall be deemed the successor Successor Servicer, subject to and in accordance with the provisions of Section 8.03, as long as the Backup such named Successor Servicer is not prohibited by any Requirements of Law from fulfilling the same, as evidenced by an Opinion of Counsel; provided, however, if Wxxxx Fargo as Backup Servicer becomes the Successor Servicer, it will not make any Scheduled Payment Advances.
(d) Any Person (i) into which the Backup Servicer may be merged or consolidated, (ii) that may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) that may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement.
(e) As compensation for its backup servicing activities hereunder, the Backup Servicer shall be entitled to receive the Backup Servicing Fee from the Servicer. The Backup Servicing Fee shall be calculated and payable monthly in arrears on each Remittance Date. The Backup Servicer’s entitlement to receive the Backup Servicing Fee (other than due and unpaid Backup Servicing Servicer Fees owed through such date) shall cease on the earliest to occur of: (i) it becoming the Successor Servicer, (ii) its removal as Backup Servicer, or (iii) the termination of this Agreement.
(f) The Backup Servicer may be removed with or without cause by the Majority Noteholders by notice given in writing to the Backup Servicer. In the event of any such removal, a replacement Backup Servicer may be appointed by Majority Noteholders.
(g) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto that the Backup Servicer will be responsible for any misconduct or negligence on the part of such agents, attorneys or custodians acting on the routine and ordinary day-to-day operations for and on behalf of the Backup Servicer. Neither the Backup Servicer nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement, Agreement other than damages or expenses that result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement.
(g) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any Tape, certificate or other data or document delivered to the Backup Servicer hereunder or on which the Backup Servicer must rely in order to perform its obligations hereunder, and the parties hereto each agree to look only to the Servicer to perform such obligations. With respect to Section 5.22(b), the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer. The Backup Servicer shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of its respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), (iii) the invalidity or unenforceability of any Loan under Requirements of Law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Loan, or (v) the acts or omissions of any successor Backup Servicer.
Appears in 1 contract
The Backup Servicer. (a) The Issuer, the Indenture Trustee Issuer and the Trust Depositor hereby appoint Xxxxx Fargo BankLyon Financial Services, National Association Inc. (d/b/a U.S. Bank Portfolio Services) to act as Backup Servicer in accordance with the terms of this Agreement. Xxxxx Fargo BankLyon Financial Services, National Association Inc. (d/b/a U.S. Bank Portfolio Services) hereby accepts such appointment and agrees to perform the duties and responsibilities with respect thereto set forth herein.
(b) The Backup Servicer shall perform the following duties and obligations:
(i) On or before four Business Days after the Closing Date, the Backup Servicer shall accept from the Servicer delivery of the information required to be set forth in the Monthly Reports and the Quarterly Reports in hard copy and in an agreed upon electronic format.
(ii) Not later than 12:00 noon New York time two six Business Days prior to following the end of each Determination Datecalendar month (in respect of any Monthly Report), commencing with the calendar month ended July 31, 2007, and four Business Days after the end of the related Due Period (in respect of any Quarterly Report), commencing with the Due Period preceding the Distribution Date occurring in November 2007, the Servicer shall provide to the Backup Servicer and the Backup Servicer shall accept delivery of tape in an agreed upon electronic format (the “Tape”) from the Servicer, which shall include but not be limited to the following information: information as of the last day of such calendar month (xin respect of any Monthly Report) or the end of such Due Period (in respect of such Quarterly Report): (A) for each Loan, the (1) Loan number, (2) legal name of the related ObligorLoan category (i.e., Real Estate Loan, Traditional Middle Market Loan, Large Middle Market Loan, Larger Middle Market Loan or Broadly Syndicated Loan), (3) state or country of the Obligor’s chief executive officeprimary business, (4) SIC CodeXxxxx’x Industry Classification Group, (5) outstandings at cost, (6) type of Loan (i.e., term Term Loan, Delayed Draw Term Loan or revolving Revolving Loan), (76) type of security interest (i.e., senior First Lien Loan or subordinatedSecond Lien Loan), (8) 7) term payment type type, (i.e., amortizing or balloon)8) origination date, (9) origination maturity date, (10) maturity datebenchmark for Loan Rate, (11) benchmark for the Loan’s interest ratemargin, (12) margin, (13) frequency of Scheduled Payments, (13) the collection status (current or delinquent; including number of days delinquent inclusive of any grace period), (14) controlling interestthe Outstanding Loan Balance, (15) the collection status, (16) the Loan status, (17) the aggregate Outstanding Loan Balance and (18) the date the current S&P Rating with respect to such Loan was issued and the date the current S&P Rating with respect to such Loan expires, (y16) the Aggregate Outstanding Loan Balance. With respect to its duties pursuant to this Section 5.15(b)(ii), and (z) the Loan Pool BalanceBackup Servicer shall have no duty to confirm that the Tape contains the foregoing information.
(iii) Prior Not later than 12:00 noon New York time twelve Business Days following the end of each calendar month (in respect of any Monthly Report) or prior to the related Payment DateDistribution Date (in respect of any Quarterly Report), the Backup Servicer shall review the related Monthly Report or Quarterly Report Report, as applicable, to ensure that it is complete on its face and based solely on the information provided to the Backup Servicer pursuant to Section 5.15(b) that the following items in such Monthly Report (other than items (B) and (E) below in the case of a Monthly Report) or Quarterly Report have been accurately calculated, if applicable, and reportedreported in such Monthly Report or Quarterly Report: (A) the Aggregate Outstanding Loan Balance, (B) the Backup Servicing Fee, (C) the Loans that are 30 or more than 60 days Delinquent delinquent (other than Defaulted Charged-Off Loans), (D) the Defaulted Charged-Off Loans, and (E) the portfolio yield, (F) the principal and interest payments due to Noteholders and (G) the Loan Pool Balance. The Backup Servicer shall notify the Indenture Trustee, the Initial Purchasers and the Servicer of any disagreements with the Quarterly Report based on such review not later than the Business Day preceding such Payment Date.
(iv) If the Servicer disagrees with the report provided under Section 5.22(b)(iii) by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer, if possible, and notify the Indenture Trustee, the Swap Counterparties and the Initial Purchasers of the resolution thereof. The Servicer hereby agrees to cooperate, at its own expense, with the Backup Servicer in reconciling any discrepancies herein. If, within 20 days after the delivery of the report provided under Section 5.22(b)(iii) by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Servicer, the Indenture Trustee, the Swap Counterparties and the Initial Purchasers of the continued existence of such discrepancy. Following receipt of such notice by the Indenture Trustee, the Swap Counterparties and the Initial Purchasers, the Servicer shall deliver to the Indenture Trustee, the Swap Counterparties, the Initial Purchasers, and the Backup Servicer, no later than the related Payment Date, a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto.
(c) After the Servicer’s and Backup Servicer’s receipt of an effective notice of termination terminating the Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer under this Agreement, whether with respect to the Loans or otherwise, shall pass to and be vested in the Backup Servicer, and the Backup Servicer shall be deemed the successor Servicer, subject to and in accordance with the provisions of Section 8.03, as long as the Backup Servicer is not prohibited by Requirements of Law from fulfilling the same, as evidenced by an Opinion of Counsel.
(d) Any Person (i) into which the Backup Servicer may be merged or consolidated, (ii) that may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) that may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement.
(e) As compensation for its backup servicing activities hereunder, the Backup Servicer shall be entitled to receive the Backup Servicing Fee from the Servicer. The Backup Servicer’s entitlement to receive the Backup Servicing Fee (other than due and unpaid Backup Servicing Fees owed through such date) shall cease on the earliest to occur of: (i) it becoming the Successor Servicer, (ii) its removal as Backup Servicer, or (iii) the termination of this Agreement.
(f) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto that the Backup Servicer will be responsible for any misconduct or negligence on the part of such agents, attorneys or custodians acting on the routine and ordinary day-to-day operations for and on behalf of the Backup Servicer. Neither the Backup Servicer nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement, other than damages or expenses that result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement.
(g) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any Tape, certificate or other data or document delivered to the Backup Servicer hereunder or on which the Backup Servicer must rely in order to perform its obligations hereunder, and the parties hereto each agree to look only to the Servicer to perform such obligations. With respect to Section 5.22(b), the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer. The Backup Servicer shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of its respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), (iii) the invalidity or unenforceability of any Loan under Requirements of Law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Loan, or (v) the acts or omissions of any successor Backup Servicer.
Appears in 1 contract
Samples: Sale and Servicing Agreement (NewStar Financial, Inc.)
The Backup Servicer. (a) The Issuer, the Indenture Trustee Issuer and the Trust Depositor hereby appoint Xxxxx Fargo BankLyon Financial Services, National Association Inc. to act as Backup Servicer in accordance with the terms of this Agreement. Xxxxx Fargo BankLyon Financial Services, National Association Inc. hereby accepts such appointment and agrees to perform the duties and responsibilities with respect thereto set forth herein.
(b) The Backup Servicer shall perform the following duties and obligations:
(i) On or before four Business Days after the Closing Date, the Backup Servicer shall accept from the Servicer delivery of the information required to be set forth in the Quarterly Reports in hard copy and in an agreed upon electronic format.
(ii) Not later than 12:00 noon New York time two four Business Days prior to each Determination Dateafter the end of the related Due Period, the Servicer shall provide to the Backup Servicer and the Backup Servicer shall accept delivery of tape in an agreed upon electronic format (the “Tape”) from the Servicer, which shall include but not be limited to the following information: (xA) for each Loan, the (1) Loan number, (2) legal name of the related ObligorLoan category (i.e., Real Estate Loan, Traditional Middle Market Loan, Large Middle Market Loan or Broadly Syndicated Loan), (3) state or country of the Obligor’s chief executive officeprimary business, (4) SIC CodeXxxxx’x Industry Classification Group, (5) outstandings at cost, (6) type of Loan (i.e., term Term Loan, Delayed Draw Term Loan or revolving Revolving Loan), (76) type of security interest (i.e., senior First Lien Loan or subordinatedSecond Lien Loan), (8) 7) term payment type type, (i.e., amortizing or balloon)8) origination date, (9) origination maturity date, (10) maturity datebenchmark for Loan Rate, (11) benchmark for the Loan’s interest ratemargin, (12) margin, (13) frequency of Scheduled Payments, (13) the collection status (current or delinquent; including number of days delinquent inclusive of any grace period), (14) controlling interestthe Outstanding Loan Balance, (15) the collection status, (16) the Loan status, (17) the aggregate Outstanding Loan Balance and (18) the date the current S&P Rating with respect to such Loan was issued and the date the current S&P Rating with respect to such Loan expires, (y16) the Aggregate Outstanding Loan Balance. With respect to its duties pursuant to this Section 5.15(b)(ii), and (z) the Loan Pool BalanceBackup Servicer shall have no duty to confirm that the Tape contains the foregoing information.
(iii) Prior to the related Payment each Distribution Date, the Backup Servicer shall review the related Quarterly Report to ensure that it is complete on its face and based solely on the information provided to the Backup Servicer pursuant to Section 5.15(b) that the following items in such Quarterly Report have been accurately calculated, if applicable, and reported: (A) the Aggregate Outstanding Loan Balance, (B) the Backup Servicing Fee, (C) the Loans that are 30 or more than 60 days Delinquent delinquent (other than Defaulted Charged-Off Loans), (D) the Defaulted Charged-Off Loans, and (E) the portfolio yield, (F) the principal and interest payments due to Noteholders and (G) the Loan Pool BalancePriority of Payments. The Backup Servicer shall notify the Indenture Trustee, the Initial Purchasers and the Servicer in writing of any disagreements discrepancies with the Quarterly Report based on such review not later than the Business Day preceding such Payment Distribution Date.
(iv) If the Servicer disagrees with the report provided under Section 5.22(b)(iiiparagraph (iii) above by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Reference Date and shall settle such discrepancy with the Servicer, Servicer if possible, and notify the Indenture Trustee, the Swap Counterparties Initial Purchasers and the Initial Purchasers Rating Agencies of the resolution thereof. The Servicer hereby agrees to cooperate, cooperate at its own expense, expense with the Backup Servicer in reconciling any discrepancies herein. If, If within 20 days after the delivery of the report provided under Section 5.22(b)(iiiparagraph (iii) above by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Servicer, the Indenture Trustee, the Swap Counterparties Initial Purchasers and the Initial Purchasers Rating Agencies of the continued existence of such discrepancy. Following receipt of such notice by the Indenture Trustee, the Swap Counterparties Initial Purchasers and the Initial PurchasersRating Agencies, the Servicer shall deliver to the Indenture Trustee, the Swap Counterparties, the Initial Purchasers, the Backup Servicer and the Backup Servicer, Rating Agencies no later than the related Payment Date, Distribution Date a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto. With respect to the foregoing, the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer. The Backup Servicer shall have no liability for any errors in the content of such Tape, and, except as specifically provided herein, shall not be required to verify, recompute, reconcile or recalculate any such information or data.
(c) After the Servicer’s and Backup Servicer’s receipt of an effective notice of termination terminating or resignation by the Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer Servicer, under this Agreement, whether with respect to the Loans or otherwise, shall pass to and be vested in the Successor Servicer or the Backup Servicer, as applicable in accordance with Section 8.03 and the Backup Servicer such applicable party shall be deemed the successor Successor Servicer, subject to and in accordance with the provisions of Section 8.03, as long as the Backup such named Successor Servicer is not prohibited by Requirements of any Applicable Law from fulfilling the same, as evidenced by an Opinion of Counsel; provided, however, if Lyon Financial Services, Inc. as Backup Servicer becomes the Successor Servicer, it will not make any Scheduled Payment Advances and its obligations as Backup Servicer hereunder shall thereafter cease.
(d) Any Person (i) into which the Backup Servicer may be merged or consolidated, (ii) that may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) that may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement.
(e) As compensation for its backup servicing activities hereunder, the Backup Servicer shall be entitled to receive the Backup Servicing Fee. The Backup Servicing Fee from the Servicershall be calculated and payable quarterly in arrears on each Distribution Date. The Backup Servicer’s entitlement to receive the Backup Servicing Fee (other than due and unpaid Backup Servicing Servicer Fees owed through such date) shall cease on the earliest to occur of: (i) it becoming the Successor Servicer, (ii) its removal as Backup Servicer, or (iii) the termination of this Agreement.
(f) The Backup Servicer may be removed and replaced as provided in Section 8.10.
(g) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto that the Backup Servicer will be responsible for any misconduct or negligence on the part of such agents, attorneys or custodians acting on the routine and ordinary day-to-day operations for and on behalf of the Backup Servicer. Neither the Backup Servicer nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement, Agreement other than damages or expenses that result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement.
(g) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any Tape, certificate or other data or document delivered to the Backup Servicer hereunder or on which the Backup Servicer must rely in order to perform its obligations hereunder, and the parties hereto each agree to look only to the Servicer to perform such obligations. With respect to Section 5.22(b), the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer. The Backup Servicer shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of its respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), (iii) the invalidity or unenforceability of any Loan under Requirements of Law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Loan, or (v) the acts or omissions of any successor Backup Servicer.
Appears in 1 contract
Samples: Sale and Servicing Agreement (NewStar Financial, Inc.)
The Backup Servicer. (a) The Issuer, the Indenture Trustee and the Trust Depositor hereby appoint Xxxxx Fargo BankBank Minnesota, National Association to act as Backup Servicer in accordance with the terms of this Agreement. Xxxxx Fargo BankBank Minnesota, National Association hereby accepts such appointment and agrees to perform the duties and responsibilities with respect thereto set forth herein.
(b) The Backup Servicer shall perform the following duties and obligations:
(i) On or before the Closing Date, the Backup Servicer shall accept from the Servicer delivery of the information required to be set forth in the Quarterly Monthly Reports in hard copy and in an agreed upon electronic format.
(ii) Not later than 12:00 noon New York time two (2) Business Days prior to each Determination Date, the Servicer shall provide to the Backup Servicer and the Backup Servicer shall accept delivery of tape in an agreed upon electronic format (the “"Tape”") from the Servicer, which shall include but not be limited to the following information: (x) for each Loan, the the
(1) Loan number, (2) legal name of the related Obligor, (3) state or country of the Obligor’s 's chief executive office, (4) SIC Code, (5) outstandings at cost, (6) type of Loan (i.e., term Loan or revolving Loan), (7) type of security interest (i.e., senior or subordinated), (8) term payment type (i.e., amortizing or balloon), (9) origination date, (10) maturity date, (11) benchmark for the Loan’s 's interest rate, (12) margin, (13) frequency of Scheduled Payments, (14) controlling interest, (15) the collection status, (16) the Loan status, and (17) the Outstanding Loan Balance Balance, and (18) the date the current S&P Rating with respect to such Loan was issued and the date the current S&P Rating with respect to such Loan expires, (y) the Aggregate Outstanding Loan Balance, and (z) the Loan Pool Balance.
(iii) Prior to the related Payment Date, the Backup Servicer shall review the Quarterly Monthly Report to ensure that it is complete on its face and that the following items in such Quarterly Monthly Report have been accurately calculated, if applicable, and reported: (A) the Aggregate Outstanding Loan Balance, (B) the Backup Servicing Fee, (C) the Loans that are 30 thirty (30) or more days Delinquent (other than Defaulted Loans), (D) the Defaulted Loans, (E) the portfolio yield, yield and (F) the principal and interest payments due to Noteholders and (G) the Loan Pool BalanceNoteholders. The Backup Servicer shall notify the Indenture Trustee, the Initial Purchasers Purchaser and the Servicer of any disagreements with the Quarterly Monthly Report based on such review not later than the Business Day preceding such Payment Date.
(iv) If the Servicer disagrees with the report provided under Section subsection 5.22(b)(iii) by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer, if possible, and notify the Indenture Trustee, the Swap Counterparties and the Initial Purchasers Purchaser of the resolution thereof. The Servicer hereby agrees to cooperate, at its own expense, with the Backup Servicer in reconciling any discrepancies herein. If, within 20 twenty (20) days after the delivery of the report provided under Section subsection 5.22(b)(iii) by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Servicer, the Indenture Trustee, the Swap Counterparties and the Initial Purchasers Purchaser of the continued existence of such discrepancy. Following receipt of such notice by the Indenture Trustee, the Swap Counterparties and the Initial PurchasersPurchaser, the Servicer shall deliver to the Indenture Trustee, the Swap Counterparties, the Initial PurchasersPurchaser, and the Backup Servicer, no later than the related Payment Date, a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto.
(c) After the Servicer’s 's and Backup Servicer’s 's receipt of an effective notice of termination terminating the Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer under this Agreement, whether with respect to the Loans or otherwise, shall pass to and be vested in the Backup Servicer, and the Backup Servicer shall be deemed the successor Servicer, subject to and in accordance with the provisions of Section 8.03, as long as the Backup Servicer is not prohibited by Requirements of Law from fulfilling the same, as evidenced by an Opinion of Counsel.
(d) Any Person (i) into which the Backup Servicer may be merged or consolidated, (ii) that may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) that may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement.
(e) As compensation for its backup servicing activities hereunder, the Backup Servicer shall be entitled to receive the Backup Servicing Fee from the Servicer. The Backup Servicer’s 's entitlement to receive the Backup Servicing Fee (other than due and unpaid Backup Servicing Fees owed through such date) shall cease on the earliest to occur of: (i) it becoming the Successor Servicer, (ii) its removal as Backup Servicer, or (iii) the termination of this Agreement.
(f) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto that the Backup Servicer will be responsible for any misconduct or negligence on the part of such agents, attorneys or custodians acting on the routine and ordinary day-to-day operations for and on behalf of the Backup Servicer. Neither the Backup Servicer nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement, other than damages or expenses that result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement.
(g) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any Tape, certificate or other data or document delivered to the Backup Servicer hereunder or on which the Backup Servicer must rely in order to perform its obligations hereunder, and the parties hereto each agree to look only to the Servicer to perform such obligations. With respect to Section subsection 5.22(b), the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer. The Backup Servicer shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of its respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), (iii) the invalidity or unenforceability of any Loan under Requirements of Law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Loan, or (v) the acts or omissions of any successor Backup Servicer.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (American Capital Strategies LTD)
The Backup Servicer. (a) The IssuerTrust, the Indenture Trustee and the Trust Depositor hereby appoint Xxxxx Fargo BankBank Minnesota, National Association to act as Backup Servicer in accordance with the terms of this Agreement. Xxxxx Fargo BankBank Minnesota, National Association hereby accepts such appointment and agrees to perform the duties and responsibilities with respect thereto set forth herein.
(b) The Backup Servicer shall perform the following duties and obligations:
(i) On or before the Closing Date, the Backup Servicer shall accept from the Servicer delivery of the information required to be set forth in the Quarterly Reports in hard copy and in an agreed upon electronic format.
(ii) Not later than 12:00 noon New York time two ten (10) Business Days prior to each Determination Dateafter the end of the related Monthly Period, the Servicer shall provide to the Backup Servicer and the Backup Servicer shall accept delivery of tape in an agreed upon electronic format (the “"Tape”") from the Servicer, which ---- shall include but not be limited to the following information: (x) for each Loan, the (1) Loan number, (2) legal name of the related Obligor, (3) scope (i.e., whether revenues are local, regional or national), (4) state or country of the Obligor’s chief 's Chief executive office, (45) SIC Code, (56) outstandings at cost, (67) type of Loan (i.e., term Partially Funded Term Loan, Fully Funded Term Loan, Reducing Revolving Loan or revolving Traditional Revolving Loan), (7) 8) type of security interest (i.e., senior or subordinated), (8) 9) term payment type (i.e., amortizing amortizing, balloon or balloonbullet), (910) origination date, (1011) maturity date, (1112) benchmark for the Loan’s interest rateLoan Rate, (1213) margin, (1314) frequency of Scheduled Payments, (1415) controlling interest, (15interest,(16) the collection status, (1617) the Loan status, and (1718) the Outstanding Loan Balance and (18) the date the current S&P Rating with respect to such Loan was issued and the date the current S&P Rating with respect to such Loan expires, (y) the Aggregate Outstanding Loan Balance. With respect to its duties pursuant to this subsection 5.15(b)(ii), and (z) the Loan Pool BalanceBackup Servicer shall have no duty to ---------------------- confirm that the Tape contains the foregoing information.
(iii) Prior to the related Payment Remittance Date, the Backup Servicer shall review the Quarterly Report to ensure that it is complete on its face and that the following items in such Quarterly Report have been accurately calculated, if applicable, and reported: (A) the Aggregate Outstanding Loan Balance, (B) the Backup Servicing Fee, (C) the Loans that are 30 or more than sixty (60) days Delinquent delinquent (other than Defaulted Charged-Off Loans), (D) the Defaulted Charged-Off Loans, (E) the portfolio yield, (F) the principal and interest payments due to Noteholders and (G) the Loan Pool BalanceNoteholders. The Backup Servicer shall notify the Indenture Trustee, the Initial Purchasers Placement Agent and the Servicer of any disagreements discrepancies with the Quarterly Report based on such review not later than the Business Day preceding such Payment Remittance Date.
(iv) If the Servicer disagrees with the report provided under Section 5.22(b)(iiiparagraph (iii) above by the Backup Servicer or if the Servicer or any --------------- subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer, Servicer if possible, and notify the Indenture Trustee, the Swap Counterparties Placement Agent and the Initial Purchasers Rating Agencies of the resolution thereof. The Servicer hereby agrees to cooperate, cooperate at its own expense, expense with the Backup Servicer in reconciling any discrepancies herein. If, If within 20 twenty (20) days after the delivery of the report provided under Section 5.22(b)(iiiparagraph (iii) above by the Backup --------------- Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Servicer, the Indenture Trustee, the Swap Counterparties Placement Agent and the Initial Purchasers Rating Agencies of the continued existence of such discrepancy. Following receipt of such notice by the Indenture Trustee, the Swap Counterparties Placement Agent and the Initial PurchasersRating Agencies, the Servicer shall deliver to the Indenture Trustee, the Swap CounterpartiesPlacement Agent, the Initial Purchasers, Backup Servicer and the Backup Servicer, Rating Agencies no later than the related Payment Date, Remittance Date a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto. With respect to the foregoing, the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer.
(c) After the Servicer’s and Backup Servicer’s receipt of an effective notice of termination terminating or resignation by the Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer Servicer, under this Agreement, whether with respect to the Loans or otherwise, shall pass to and be vested in the Backup Servicer, Servicer and the Backup Servicer shall be deemed the successor Successor Servicer, subject to and in accordance with the provisions of Section 8.03, as long as the Backup Servicer is not prohibited by Requirements ------------ an applicable provision of Law law from fulfilling the same, as evidenced by an Opinion of Counsel; provided, however, if Xxxxx Fargo as Backup Servicer becomes -------- ------- the Successor Servicer, it will not make any Scheduled Payment Advances.
(d) Any Person (i) into which the Backup Servicer may be merged or consolidated, (ii) that may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) that may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement.
(e) As compensation for its backup servicing activities hereunder, the Backup Servicer shall be entitled to receive the Backup Servicing Fee from the Servicer. The Backup Servicing Fee shall be calculated monthly but payable quarterly on each Remittance Date. The Backup Servicer’s 's entitlement to receive the Backup Servicing Fee (other than due and unpaid Backup Servicing Servicer Fees owed through such date) shall cease on the earliest to occur of: (i) it becoming the Successor Servicer, (ii) its removal as Backup Servicer, or (iii) the termination of this Agreement.
(f) The Backup Servicer may be removed with or without cause by the Majority Noteholders by notice given in writing to the Backup Servicer. In the event of any such removal, a replacement Backup Servicer may be appointed by Majority Noteholders.
(g) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto that the Backup Servicer will be responsible for any misconduct or negligence on the part of such agents, attorneys or custodians acting on the routine and ordinary day-to-day operations for and on behalf of the Backup Servicer. Neither the Backup Servicer nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement, Agreement other than damages or expenses that result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement.
(g) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any Tape, certificate or other data or document delivered to the Backup Servicer hereunder or on which the Backup Servicer must rely in order to perform its obligations hereunder, and the parties hereto each agree to look only to the Servicer to perform such obligations. With respect to Section 5.22(b), the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer. The Backup Servicer shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of its respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), (iii) the invalidity or unenforceability of any Loan under Requirements of Law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Loan, or (v) the acts or omissions of any successor Backup Servicer.
Appears in 1 contract
The Backup Servicer. (a) The Issuer, the Indenture Trustee and the Trust Depositor hereby appoint Xxxxx Fargo Bank, National Association to act as Backup Servicer in accordance with the terms of this Agreement. Xxxxx Fargo Bank, National Association hereby accepts such appointment and agrees to perform the duties and responsibilities with respect thereto set forth herein.
(b) The Backup Servicer shall perform the following duties and obligations:
(i) On or before the Closing Date, the Backup Servicer shall accept from the Servicer delivery of the information required to be set forth in the Monthly Reports and Quarterly Reports in hard copy and in an agreed upon electronic format.
(ii) Not later than 12:00 noon New York time two Business Days prior to each Determination Date, the Servicer shall provide to the Backup Servicer and the Backup Servicer shall accept delivery of tape in an agreed upon electronic format (the “Tape”) from the Servicer, which shall include but not be limited to the following information: (x) for each Loan, the (1) Loan number, (2) legal name of the related Obligor, (3) state or country of the Obligor’s chief executive office, (4) SIC Code, (5) outstandings at cost, (6) type of Loan (i.e., term Loan or revolving Loan), (7) type of security interest (i.e., senior or subordinated), (8) term payment type (i.e., amortizing or balloon), (9) origination date, (10) maturity date, (11) benchmark for the Loan’s interest rate, (12) margin, (13) frequency of Scheduled Payments, (14) controlling interest, (15) the collection status, (16) the Loan status, (17) the Outstanding Loan Balance and (18) the date the current S&P Rating with respect to such Loan was issued and the date the current S&P Rating with respect to such Loan expires, (y) the Aggregate Outstanding Loan Balance, and (z) the Loan Pool Balance.
(iii) Prior to the related Payment Date, the Backup Servicer shall review the Quarterly Report to ensure that it is complete on its face and that the following items in such Quarterly Report have been accurately calculated, if applicable, and reported: (A) the Aggregate Outstanding Loan Balance, (B) the Backup Servicing Fee, (C) the Loans that are 30 or more days Delinquent (other than Defaulted Loans), (D) the Defaulted Loans, (E) the portfolio yield, (F) the principal and interest payments due to Noteholders and (G) the Loan Pool Balance. The Backup Servicer shall notify the Indenture Trustee, the Initial Purchasers and the Servicer of any disagreements with the Quarterly Report based on such review not later than the Business Day preceding such Payment Date.
(iv) If the Servicer disagrees with the report provided under Section 5.22(b)(iii) by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer, if possible, and notify the Indenture Trustee, the Swap Counterparties and the Initial Purchasers of the resolution thereof. The Servicer hereby agrees to cooperate, at its own expense, with the Backup Servicer in reconciling any discrepancies herein. If, within 20 days after the delivery of the report provided under Section 5.22(b)(iii) by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Servicer, the Indenture Trustee, the Swap Counterparties and the Initial Purchasers of the continued existence of such discrepancy. Following receipt of such notice by the Indenture Trustee, the Swap Counterparties and the Initial Purchasers, the Servicer shall deliver to the Indenture Trustee, the Swap Counterparties, the Initial Purchasers, and the Backup Servicer, no later than the related Payment Date, a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto.
(c) After the Servicer’s and Backup Servicer’s receipt of an effective notice of termination terminating the Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer under this Agreement, whether with respect to the Loans or otherwise, shall pass to and be vested in the Backup Servicer, and the Backup Servicer shall be deemed the successor Servicer, subject to and in accordance with the provisions of Section 8.03, as long as the Backup Servicer is not prohibited by Requirements of Law from fulfilling the same, as evidenced by an Opinion of Counsel.
(d) Any Person (i) into which the Backup Servicer may be merged or consolidated, (ii) that may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) that may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement.
(e) As compensation for its backup servicing activities hereunder, the Backup Servicer shall be entitled to receive the Backup Servicing Fee from the Servicer. The Backup Servicer’s entitlement to receive the Backup Servicing Fee (other than due and unpaid Backup Servicing Fees owed through such date) shall cease on the earliest to occur of: (i) it becoming the Successor Servicer, (ii) its removal as Backup Servicer, or (iii) the termination of this Agreement.
(f) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto that the Backup Servicer will be responsible for any misconduct or negligence on the part of such agents, attorneys or custodians acting on the routine and ordinary day-to-day operations for and on behalf of the Backup Servicer. Neither the Backup Servicer nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement, other than damages or expenses that result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement.
(g) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any Tape, certificate or other data or document delivered to the Backup Servicer hereunder or on which the Backup Servicer must rely in order to perform its obligations hereunder, and the parties hereto each agree to look only to the Servicer to perform such obligations. With respect to Section 5.22(b), the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer. The Backup Servicer shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of its respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party (other than any agent, attorney or custodian acting on behalf of such Backup Servicer), (iii) the invalidity or unenforceability of any Loan under Requirements of Law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Loan, or (v) the acts or omissions of any successor Backup Servicer.,
Appears in 1 contract
Samples: Transfer and Servicing Agreement (American Capital Strategies LTD)
