Responsibilities of Servicer. (a) The Servicer, for the benefit of the Noteholders, shall be responsible for, and shall, in accordance with its customary practices, (b) The Servicer shall conduct any Contract management, servicing, administration, collection or enforcement actions in the following manner: (i) The Servicer, as agent for and on behalf of the Issuer, with respect to any Defaulted Contract shall follow such practices and procedures as are normal and consistent with the Servicer's standards and procedures relating to its own contracts, receivables and vacation credits that are similar to the Contracts, Receivables and the Credits, including without limitation, the taking of appropriate actions to foreclose or otherwise liquidate any such Defaulted Contract, together with the related Credits, to collect any Guaranty Amounts, and to enforce the Issuer's rights in or under the Sale Agreement and the Receivables Purchase Agreement. The Servicer shall continue its customary practice of applying payments on Defaulted Contracts and Delinquent Contracts first to delinquent interest, then to interest and then to principal. All Recoveries or Residual Proceeds in respect of any such Receivable and the related Credits received by the Servicer or the Subservicer shall be deposited in the Clearing Account pursuant to Section 3.03(a); (ii) The Servicer may sue ▇▇ enforce or collect upon Contracts as agent for the Trustee. If the Servicer elects to commence a legal proceeding to enforce a Contract, the act of commencement shall be deemed to be an automatic assignment of the Contract to the Servicer for purposes of collection only. If, however, in any enforcement suit or legal proceeding it is held that the Servicer may not enforce a Contract on the ground that it is not a real party in interest or a holder entitled to enforce the Contract, then the Trustee shall, at the Servicer's request and expense, take such steps as the Servicer deems necessary and instructs the Trustee in writing to take to enforce the Contract, including bringing suit in its name or the name of the Issuer or the names of the Noteholders, and the Trustee shall be indemnified by the Servicer for any such action taken; (iii) The Servicer shall exercise any rights of recourse against third parties that exist with respect to any Contract in accordance with the Servicer's usual practice and applicable law. In exercising recourse rights, the Servicer is authorized on the Trustee's behalf to reassign the Contract to the person against whom recourse exists to the extent necessary, and at the price set forth in the document creating the recourse. The Servicer will not reduce or diminish such recourse rights, except to the extent that it exercises such right; (iv) The Servicer may not accept Substitute Contracts that do not comply with Section 3.10 hereof, Sections 3.03 and 3.04 of the Receivables Purchase Agreement, Sections 3.03 and 3.04 of the Sale Agreement and Section 4.03 of the Indenture; (v) The Servicer may waive, modify or vary any terms of any Contract or consent to the postponement of strict compliance with any such term if in the Servicer's reasonable and prudent determination such waiver, modification or postponement is not materially adverse to the Noteholders; provided, however, that except as otherwise expressly permitted with respect to an Upgrade, (A) the Servicer shall not forgive any payment, and (B) the Servicer shall not permit any modification, waivers, variation or postponements with respect to any Contract that would decrease the Scheduled Payment, defer the payment of any principal or interest or any (vi) Notwithstanding any provision to the contrary contained in this Agreement, the Servicer or the Subservicer shall exercise any right under a Contract to accelerate the unpaid Scheduled Payments, due or to become due thereunder in such a manner as to maximize the net proceeds available to the Issuer; provided, however, that the Servicer will not accelerate any Scheduled Payment unless permitted to do so by the terms of the Contract and under applicable law.
Appears in 2 contracts
Sources: Servicing Agreement (Trendwest Resorts Inc), Servicing Agreement (Trendwest Resorts Inc)
Responsibilities of Servicer. Anything herein to the contrary notwithstanding:
(a) The Servicer, for the benefit of the Noteholders, Servicer shall be responsible forperform its obligations hereunder, and shall, in accordance with the exercise by the Issuer or its customary practices,designee of its rights hereunder shall not relieve the Servicer from such obligations;
(b) The the Servicer shall conduct not have any Contract managementobligation or liability to TRC LLC or Innoviva or any other Person other than the Issuer and, servicing, administration, collection or enforcement actions in the following manner:
(i) The Servicer, except as agent expressly provided for and on behalf of the Issuerhereunder, with respect to any Defaulted Contract shall follow such practices and procedures as are normal and consistent with the Servicer's standards and procedures relating to its own contracts, receivables and vacation credits that are similar to the Contracts, Receivables and the Credits, including without limitation, the taking of appropriate actions to foreclose or otherwise liquidate any such Defaulted Contract, together with the related Credits, to collect any Guaranty Amounts, and to enforce the Issuer's ’s rights in or and obligations under the Sale TRC LLC Agreement and or any related agreements, nor shall the Receivables Purchase Agreement. The Servicer shall continue its customary practice be obligated to perform any of applying payments on Defaulted Contracts and Delinquent Contracts first to delinquent interest, then to interest and then to principal. All Recoveries or Residual Proceeds in respect the obligations of any such Receivable and the related Credits received by the Servicer or the Subservicer shall be deposited in the Clearing Account pursuant to Section 3.03(a)of them thereunder;
(iic) The Servicer may sue ▇▇ enforce or collect upon Contracts as agent for the Trustee. If the Servicer elects to commence a legal proceeding to enforce a Contract, the act of commencement shall be deemed agrees to be an automatic assignment bound by the provisions of the Contract Sale and Contribution Agreement to the Servicer for purposes of collection only. If, however, in extent it receives Confidential Information pursuant to this Servicing Agreement or any enforcement suit or legal proceeding it is held that the Servicer may not enforce a Contract on the ground that it is not a real party in interest or a holder entitled to enforce the Contract, then the Trustee shall, at the Servicer's request and expense, take such steps as the Servicer deems necessary and instructs the Trustee in writing to take to enforce the Contract, including bringing suit in its name or the name of the Issuer or the names of the Noteholders, and the Trustee shall be indemnified by the Servicer for any such action takenother Transaction Document;
(iiid) The the Servicer shall exercise any rights of recourse against third parties that exist with respect to any Contract perform its obligations under this Servicing Agreement in accordance with the Servicer's usual practice and applicable law. In exercising recourse rights, the Servicer is authorized on the Trustee's behalf to reassign the Contract to the person against whom recourse exists to the extent necessary, and at the price set forth in the document creating the recourse. The Servicer will not reduce or diminish such recourse rights, except to the extent that it exercises such right;
(iv) The Servicer may not accept Substitute Contracts that do not comply with Section 3.10 hereof, Sections 3.03 and 3.04 of the Receivables Purchase Agreement, Sections 3.03 and 3.04 of the Sale Agreement and Section 4.03 of the Indenture;
(v) The Servicer may waive, modify or vary any terms of any Contract or consent to the postponement of strict compliance with any such term if in the Servicer's its reasonable and prudent determination such waiver, modification or postponement is not materially adverse servicing procedures for servicing assets comparable to the NoteholdersIssuer’s rights and obligations under the TRC LLC Agreement for its own account or for others and in any event with such care as a reasonably prudent servicer would use to service and administer the Issuer’s rights and obligations under the TRC LLC Agreement and not in violation of the Issuer’s obligations under the Transaction Documents; provided, however, that except as otherwise expressly permitted with respect to an Upgrade, (A) the Servicer shall not forgive any paymentbe obligated to use separate servicing procedures, offices, employees or accounts for servicing the Issuer’s rights and obligations under the TRC LLC Agreement from the procedures, offices, employees and accounts used by the Servicer in connection with servicing other assets comparable to the Issuer’s rights and obligations under the TRC LLC Agreement; and
(Be) the Servicer shall not permit and any modificationmember, waiversdirector, variation officer, employee or postponements with respect to agent of the Servicer may rely in good faith on any Contract that would decrease the Scheduled Payment, defer the payment document of any principal or interest or any
(vi) Notwithstanding any provision to the contrary contained in this Agreement, the Servicer or the Subservicer shall exercise any right under a Contract to accelerate the unpaid Scheduled Payments, due or to become due thereunder in such a manner as to maximize the net proceeds available to the Issuer; provided, however, that the Servicer will not accelerate any Scheduled Payment unless permitted to do so kind prima facie properly executed and submitted by the terms of appropriate Person respecting any matters arising under the Contract and under applicable lawTransaction Documents.
Appears in 2 contracts
Sources: Servicing Agreement (Theravance Biopharma, Inc.), Servicing Agreement (Theravance Biopharma, Inc.)
Responsibilities of Servicer. (a) The During the term of this Agreement, the Servicer, for the benefit of the Issuer, the Indenture Trustee and the Noteholders, shall be responsible for, and shall, in accordance with the servicing standards set forth herein, engage in the following activities: (i) monitoring the Policies on an ongoing basis to ensure that the terms of each Policy and all reporting requirements are observed, (ii) submitting claims for payment to and monitoring Obligors to ensure timely payment of Policy Proceeds with respect to all Policies that have reached Maturity, (iii) monitoring the Policies on an ongoing basis to ensure that all insurance premiums are remitted to Obligors when due and reporting such payments as provided herein, (iv) maintaining contact with the Insureds on an ongoing basis to ascertain the Maturity of each Policy and obtaining death certificates upon the Maturity of Policies, (v) performing monthly compliance calculations and generating Monthly Servicing Reports, (vi) enforcing the Indenture Trustee's security interest in the Policies granted pursuant to the Amended and Restated Indenture, and (vii) acting with full power and authority, at its customary practices,sole discretion, to do any and all things in connection with its responsibilities that it may deem necessary or desirable and in the best interests of the Issuer and the Indenture Trustee, including the prudent delegation of such responsibilities to subservicers approved by the Majority Noteholders, which approval shall not be unreasonably withheld.
(b) Without limiting the generality of the foregoing, the Servicer, in its own name or in the name of a subservicer, shall, and is hereby authorized and empowered by the Indenture Trustee, subject to Section 5.02 hereof, to execute and deliver (on behalf of itself, the Issuer, the Noteholders, the Indenture Trustee or any of them) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the Policies or the Documentation. Notwithstanding the foregoing, neither the Servicer, nor any subservicer, shall, except pursuant to a judicial order from a court of competent jurisdiction, or as otherwise expressly provided in this Agreement or pursuant to the Master Agreement, release or waive the right to collect the Policy Proceeds relating to any Policy. The Indenture Trustee shall, at the expense of the Noteholders, furnish the Servicer, or at the request of the Servicer, any subservicer, with any powers of attorney and other documents necessary or appropriate to enable PWCC or subservicer to carry out its servicing and administrative duties hereunder. Notwithstanding the appointment by the Servicer of a subservicer hereunder, the Servicer shall remain primarily liable for the full performance of its obligations hereunder during the term of this Agreement.
(c) The Servicer and its subservicers shall conduct any Contract management, servicing, administration, collection or enforcement actions in the following manner:
(i) The Servicer, as agent for and on behalf of the Issuer, with respect to any Defaulted Contract shall follow such practices and procedures as are normal and consistent with the Servicer's standards and procedures relating to its own contracts, receivables and vacation credits that are similar to the Contracts, Receivables Issuer and the CreditsIndenture Trustee, including without limitation, the taking of appropriate actions to foreclose or otherwise liquidate any such Defaulted Contract, together with the related Credits, to collect any Guaranty Amounts, and to shall enforce the Issuer's rights in or under payment of all claims by the Sale Agreement Obligors and the Receivables Purchase Agreement. The Servicer shall continue its customary practice of applying payments on Defaulted Contracts and Delinquent Contracts first to delinquent interest, then to interest and then to principalpursue any available claims against state guaranty insurance funds. All Recoveries or Residual and Policy Proceeds in respect of any such Receivable and the related Credits Policy that are received by the Servicer or the Subservicer shall be deposited remitted to the Indenture Trustee for deposit in the Clearing Collection Account pursuant to Section 3.03(a);) hereof; and
(ii) The Servicer may sue ▇▇▇ to enforce or collect upon Contracts Policies as agent for the TrusteeIssuer and the Indenture Trustee on behalf of the Noteholders. If the Servicer elects to commence a legal proceeding to enforce a ContractPolicy, the act of commencement shall be deemed to be an automatic assignment of the Contract Policy to the Servicer for purposes of collection only. If, however, in any enforcement suit or legal proceeding it is held that the Servicer may not enforce a Contract Policy on the ground that it is not a real party in interest or a holder entitled to enforce an owner of the ContractPolicy, then the Indenture Trustee on behalf of the Noteholders shall, at the Servicer's request and expenserequest, take such steps as the Servicer deems necessary and instructs the Indenture Trustee in writing to take to enforce the ContractPolicy, including bringing suit in its name or the name of the Issuer Issuer, as beneficial owner of the Policy, or the names name of the NoteholdersIndenture Trustee, and the Indenture Trustee shall be indemnified by the Servicer for any such action taken;
(iii) The Servicer shall exercise any rights of recourse against third parties that exist with respect to any Contract in accordance with the Servicer's usual practice and applicable law. In exercising recourse rights, the Servicer is authorized on the Trustee's behalf to reassign the Contract to the person against whom recourse exists to the extent necessary, and at the price set forth in the document creating the recourse. The Servicer will not reduce or diminish such recourse rights, except to the extent that it exercises such right;
(iv) The Servicer may not accept Substitute Contracts that do not comply with Section 3.10 hereof, Sections 3.03 and 3.04 of the Receivables Purchase Agreement, Sections 3.03 and 3.04 of the Sale Agreement and Section 4.03 of the Indenture;
(v) The Servicer may waive, modify or vary any terms of any Contract or consent to the postponement of strict compliance with any such term if in the Servicer's reasonable and prudent determination such waiver, modification or postponement is not materially adverse to the Noteholders; provided, however, that except as otherwise expressly permitted with respect to an Upgrade, (A) the Servicer shall not forgive any payment, and (B) the Servicer shall not permit any modification, waivers, variation or postponements with respect to any Contract that would decrease the Scheduled Payment, defer the payment of any principal or interest or any
(vi) Notwithstanding any provision to the contrary contained in this Agreement, the Servicer or the Subservicer shall exercise any right under a Contract to accelerate the unpaid Scheduled Payments, due or to become due thereunder in such a manner as to maximize the net proceeds available to the Issuer; provided, however, that the Servicer will not accelerate any Scheduled Payment unless permitted to do so by the terms of the Contract and under applicable law.
Appears in 1 contract
Sources: Contribution, Sale and Servicing Agreement (Point West Capital Corp)
Responsibilities of Servicer. (a) The Servicer, for the benefit of the Noteholders, shall be responsible for, and shall, in accordance with its customary practices,servicing procedure, pursue the managing, servicing, administering, enforcing and making of collections on the Lease Contracts, the Lease Receivables, the Equipment and any Insurance Policies, the enforcement of the Trustee's security interest in the Lease Contracts, the Lease Receivables and Equipment granted pursuant to the Indenture, and, if applicable, the sale or the re-leasing of the Equipment upon the expiration or other termination of the related Lease Contract (or repossession thereof without termination), each in accordance with applicable law and the standards and procedures set forth in this Agreement and any related provisions of the Indenture and the Contribution Agreement. The Servicer's responsibilities shall include collecting and posting of all payments, responding to inquiries of Customers, investigating delinquencies, accounting for collections and furnishing monthly and annual statements to the Trustee and the Noteholders with respect to payments, making Servicer Advances and using its best efforts to maintain the perfected security interest of the Trustee in the Trust Estate. Subject to the terms and conditions of this Agreement, the Servicer (at its expense), acting alone or through a subservicer, shall have full power and authority, acting at its sole discretion, to do any and all things in connection with such managing, servicing, administration, enforcement, collection and such repossession and sale of the Equipment that it may deem necessary or desirable and in the best interests of the Noteholders, including the prudent delegation of such responsibilities. Without limiting the generality of the foregoing, the Servicer, in its own name or in the name of a subservicer, shall, and is hereby authorized and empowered by the Trustee in the Trustee's role as secured party, subject to Section 3.02 hereof, to execute and deliver (on behalf of itself, the Noteholders, the Trustee or any of them) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the Lease Contracts and the Lease Contract Files, in accordance with the Transaction Documents. Subject to the terms and conditions of this Agreement, the Servicer, acting alone or through a subservicer, also may, in its sole discretion, waive any late payment charge or penalty, or any other fees that may be collected in the ordinary course of servicing any Lease Contract. Notwithstanding the foregoing, neither the Servicer, nor any subservicer, shall, except pursuant to a judicial order from a court of competent jurisdiction, or as otherwise expressly provided in this Agreement, release or waive the right to collect the Scheduled Payments or any unpaid balance on any Lease Contract, except with respect to any Lease Contact which is entered into in order to re-lease Equipment relating to an expired Lease Contract, in which case the Servicer may terminate such re-lease lease contract if the Servicer enters into a new re-lease contract, receives the related Equipment back or receives a payment equal to the fair market value of such Equipment from the lessee. The Servicer shall remarket Equipment for which any Lease Contract has expired in a manner consistent with the standard of care set forth in Section 3.02. The Trustee shall, at the expense of the Servicer, furnish the Servicer, or at the request of the Servicer, any subservicer, with any powers of attorney and other documents necessary or appropriate to enable the Servicer or subservicer to carry out its servicing and administrative duties hereunder, and the Trustee shall not be responsible for the Servicer's or subservicer's application or use thereof. Notwithstanding the appointment by the Servicer of a subservicer hereunder, the Servicer shall remain primarily liable for the full performance of its obligations hereunder.
(b) The Notwithstanding any provision to the contrary herein, the Servicer (or a subservicer) shall conduct any Lease Contract management, servicing, administration, collection or enforcement actions in the following manner:
(i) The Servicer, as agent for and on behalf of the Issuer, with respect to any Defaulted Lease Contract shall follow such practices and procedures as are normal and consistent with the Servicer's standards and procedures relating to its own lease contracts, lease receivables and vacation credits equipment that are similar to the Lease Contracts, Lease Receivables and the CreditsEquipment, including without limitation, the taking of appropriate actions to foreclose or otherwise liquidate any such Defaulted Lease Contract, together with the related CreditsEquipment, to collect any Guaranty Amounts, and to enforce the Issuer's rights in or under the Sale Agreement and the Receivables Purchase Contribution Agreement. The Servicer shall continue its customary practice of applying payments on Defaulted Contracts and Delinquent Contracts first to delinquent interest, then to interest and then to principal. All Recoveries or Residual Proceeds in respect of any such Lease Contract, Lease Receivable and the related Credits Equipment received by the Servicer or the Subservicer shall be deposited remitted to the Trustee for deposit in the Clearing Collection Account pursuant to Section 3.03(a);
(ii) The Servicer may sue ▇▇▇ to enforce or collect upon Lease Contracts as agent for the Trustee. If the Servicer elects to commence a legal proceeding to enforce a Lease Contract, the act of commencement shall be deemed to be an automatic assignment of the Lease Contract to the Servicer for purposes of collection only. If, however, in any enforcement suit or legal proceeding it is held that the Servicer may not enforce a Lease Contract on the ground that it is not a real party in interest or a holder entitled to enforce the Lease Contract, then the Trustee shall, at the Servicer's request and expense, take such steps as the Servicer deems necessary and instructs the Trustee in writing to take to enforce the Lease Contract, including bringing suit in its name or the name of the Issuer or the names of the Noteholders, and the Trustee shall be indemnified by the Servicer for any such action taken;
(iii) The Servicer shall exercise any rights of recourse against third parties that exist with respect to any Lease Contract in accordance with the Servicer's usual practice and applicable law. In exercising recourse rights, the Servicer is authorized on the Trustee's behalf to reassign release the security interest of the Trustee in the Lease Contract to the person against whom recourse exists to the extent necessary, and at the price set forth in the document creating the recourse. The Servicer will not reduce or diminish such recourse rights, except to the extent that it exercises such right;
(iv) The Servicer may not accept Substitute Lease Contracts that do not comply with Section 3.10 hereof, Sections 3.03 and 3.04 of the Receivables Purchase Agreement, Sections 3.03 and 3.04 of the Sale Contribution Agreement and Section 4.03 of the Indenture;
(v) The Without in any way limiting the generality of Section 3.01(b)(i), the Servicer may waive, modify or vary any terms of any Lease Contract or consent to the postponement of strict compliance with any such term if in the Servicer's reasonable and prudent determination such waiver, modification or postponement is not materially adverse to the Noteholders; provided, however, that except as otherwise expressly permitted with respect to an Upgrade, (A) the Servicer shall not forgive any paymentpayment of rent, and (B) the Servicer shall not permit any modification, waivers, variation or postponements with respect to any Lease Contract that would decrease the Scheduled Payment, defer the payment of any principal or interest or anyany Scheduled Payment, reduce the Aggregate Implicit Principal Balance relating to the Notes, or prevent the complete amortization of the Aggregate Implicit Principal Balance relating to the Notes from occurring by the Calculation Date preceding the Stated Maturity. The Monthly Servicer's Report shall indicate any modification of any Scheduled Payment;
(vi) The Servicer shall not consent to the termination of any Lease Contract in connection with loss of or damage to the related Equipment unless the Customer has paid an amount not less than an amount equal to the sum of (a) the present value of the unpaid Scheduled Payments on such Lease Contract, (discounted at the rate set forth in such Lease Contract or consistent with the Servicer's past practice) and (b) the amount set forth in such Lease Contract as the purchase option price for such Equipment, or if less, the maximum amount legally collectible under the related Lease Contract;
(vii) In the event that the Servicer or any subservicer in the enforcement of any Lease Contract or otherwise (A) acquires title to any item of Equipment with respect to which title was held by the Customer or (B) reclaims possession of Equipment from the Customer, the Servicer shall use its best efforts to sell or re-lease such item of Equipment promptly and consistent with the standard of care set forth in Section 3.02 hereof. Any Recoveries or Residual Proceeds related thereto shall be deposited in accordance with Section 3.03(a) hereof; and
(viii) Notwithstanding any provision to the contrary contained in this Agreement, the Servicer or the Subservicer any subservicer shall exercise any right under a Lease Contract to accelerate the unpaid Scheduled Payments, due or to become due thereunder in such a manner as to maximize the net proceeds available to the Issuer; provided, however, that the Servicer will not accelerate any Scheduled Payment unless permitted to do so by the terms of the Lease Contract and or under applicable law.
Appears in 1 contract
Responsibilities of Servicer. (a) The Servicer, for the benefit of the Noteholders, shall be responsible for, and shall, in accordance with its customary practices,, pursue the managing, servicing, administering, enforcing and making of collections on the Contracts, the Credits, the enforcement of the Trustee's security interest in the Receivables and the Credits granted pursuant to the Indenture, and, if applicable, the resale of the Credits, each in accordance with applicable law and the standards and procedures set forth in this Agreement and any related provisions of the Indenture, the Sale Agreement and the Receivables Purchase Agreement. The Servicer's responsibilities shall include collecting and posting of all payments, responding to inquiries of Obligors, investigating delinquencies, accounting for collections and furnishing monthly and annual statements to the Trustee and the Noteholders with respect to payments and using its best efforts to maintain the perfected security interest of the Trustee in each Series Trust Estate (except with respect to the Credits). Subject to the terms and conditions of this Agreement, the Servicer (at its expense), acting alone or through a subservicer, including the Subservicer, shall have full power and authority, acting at its sole discretion, to do any and all things in connection with such managing, servicing, administration, enforcement, collection and such resale of the Credits that it may deem necessary or desirable and in the best interests of the Noteholders, including the prudent delegation of such responsibilities. Without limiting the generality of the foregoing, the Servicer, in its own name or in the name of the Subservicer, shall, and is hereby authorized and empowered by the Trustee, subject to Section 3.02 hereof, to execute and deliver (on behalf of itself, the Noteholders, the Trustee or any of them) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the Contracts, the Custodian Files and the Contract Files. Subject to the terms and conditions of this Agreement, the Servicer, acting alone or through the Subservicer, also may, in its sole discretion, waive any late payment charge or penalty, or any other fees that may be collected in the ordinary course of servicing any Contract. Notwithstanding the foregoing, neither the Servicer, nor the Subservicer, shall, except pursuant to an Upgrade or a judicial order from a court of competent jurisdiction, or as otherwise expressly provided in this Agreement, release or waive the right to collect the Scheduled Payments or any unpaid balance on any Contract. The Trustee shall, at the expense of the Servicer, furnish the Servicer, or at the request of the Servicer, the Subservicer, with any powers of attorney and other documents necessary or appropriate to enable the Servicer or the Subservicer to carry out their servicing and administrative duties hereunder, and the Trustee shall not be responsible for the Servicer's or the Subservicer's application thereof. Notwithstanding the appointment by the Servicer of the Subservicer or any delegation of its responsibilities hereunder, the Servicer shall remain primarily liable for the full performance of its obligations hereunder; provided, however, that if the Servicer requests from the Holders the removal of the Subservicer with respect to any Series after the occurrence of a Subservicer Event of Default, or any act or omission that with the passage of time would be a Subservicer Event of Default, and the Holders of 66-2/3% in principal amount of the Notes of the Controlling Class of such Series Outstanding do not consent to such request, the Servicer shall no longer be liable for any subsequent acts of the Subservicer except any acts taken by Sage at the direction of the Servicer.
(b) The Servicer shall conduct any Contract management, servicing, administration, collection or enforcement actions in the following manner:
(i) The Servicer, as agent for and on behalf of the Issuer, with respect to any Defaulted Contract shall follow such practices and procedures as are normal and consistent with the Servicer's standards and procedures relating to its own contracts, receivables and vacation credits that are similar to the Contracts, Receivables and the Credits, including without limitation, the taking of appropriate actions to foreclose or otherwise liquidate any such Defaulted Contract, together with the related Credits, to collect any Guaranty Amounts, and to enforce the Issuer's rights in or under the Sale Agreement and the Receivables Purchase Agreement. The Servicer shall continue its customary practice of applying payments on Defaulted Contracts and Delinquent Contracts first to delinquent interest, then to interest and then to principal. All Recoveries or Residual Proceeds in respect of any such Receivable and the related Credits received by the Servicer or the Subservicer shall be deposited in the Clearing Account pursuant to Section 3.03(a);
(ii) The Servicer may sue ▇▇ to enforce or collect upon Contracts as agent for the Trustee. If the ▇▇▇ Servicer elects to commence a legal proceeding to enforce a Contract, the act of commencement shall be deemed to be an automatic assignment of the Contract to the Servicer for purposes of collection only. If, however, in any enforcement suit or legal proceeding it is held that the Servicer may not enforce a Contract on the ground that it is not a real party in interest or a holder entitled to enforce the Contract, then the Trustee shall, at the Servicer's request and expense, take such steps as the Servicer deems necessary and instructs the Trustee in writing to take to enforce the Contract, including bringing suit in its name or the name of the Issuer or the names of the Noteholders, and the Trustee shall be indemnified by the Servicer for any such action taken;
(iii) The Servicer shall exercise any rights of recourse against third parties that exist with respect to any Contract in accordance with the Servicer's usual practice and applicable law. In exercising recourse rights, the Servicer is authorized on the Trustee's behalf to reassign the Contract to the person against whom recourse exists to the extent necessary, and at the price set forth in the document creating the recourse. The Servicer will not reduce or diminish such recourse rights, except to the extent that it exercises such right;
(iv) The Servicer may not accept Substitute Contracts that do not comply with Section 3.10 hereof, Sections 3.03 and 3.04 of the Receivables Purchase Agreement, Sections 3.03 and 3.04 of the Sale Agreement and Section 4.03 of the Indenture;
(v) The Servicer may waive, modify or vary any terms of any Contract or consent to the postponement of strict compliance with any such term if in the Servicer's reasonable and prudent determination such waiver, modification or postponement is not materially adverse to the NoteholdersNoteholders of any Series; provided, however, that except as otherwise expressly permitted with respect to an Upgrade, (A) the Servicer shall not forgive any payment, and (B) the Servicer shall not permit any modification, waivers, variation or postponements with respect to any Contract that would decrease the Scheduled Payment, defer the payment of any principal or interest or anyany Scheduled Payment, reduce the Aggregate Collateral Value relating to the Notes of any Series (except in connection with actual payments attributable to such Aggregate Collateral Value), or prevent the complete amortization of the Aggregate Collateral Value relating to the Notes of any Series from occurring by the Calculation Date preceding the Stated Maturity with respect to such Notes. The Monthly Servicer's Report shall indicate any modification of any Scheduled Payment pursuant to Section 2.02(a)(ii) hereof; and
(vi) Notwithstanding any provision to the contrary contained in this Agreement, the Servicer or the Subservicer shall exercise any right under a Contract to accelerate the unpaid Scheduled Payments, due or to become due thereunder in such a manner as to maximize the net proceeds available to the Issuer; provided, however, that the Servicer will not accelerate any Scheduled Payment unless permitted to do so by the terms of the Contract and under applicable law.
Appears in 1 contract
Responsibilities of Servicer. (a) The Transferor hereby appoints the Servicer, for the benefit of MBIA and the NoteholdersCertificateholders, to act as Servicer of the Lease Assets and as such, the Servicer shall be responsible for, and shall, in accordance with its customary practices,servicing procedures, pursue the managing, servicing, administering, enforcing and making of collections on the Lease Contracts, the Equipment, the Lease Receivables and any Insurance Policies, the enforcement of the Trustee's security interest in the Lease Contracts, Lease Receivables and Equipment conveyed pursuant to the Trust and Security Agreement, and the sale or the releasing of the Equipment upon the expiration or other termination of the related Lease Contract (or repossession thereof without termination), each in accordance with the standards and procedures set forth in this Agreement and any related provisions of the Trust and Security Agreement and Lease Acquisition Agreement. The Servicer's responsibilities shall include monitoring and posting of all payments, responding to inquiries of Customers, investigating delinquencies, accounting for collections and furnishing monthly and annual statements to the Back-up Servicer, the Trustee, MBIA, the Rating Agencies and the Certificateholders with respect to payments under the Lease Contracts, making Servicer Advances, providing appropriate federal income tax information to the Trustee for use in providing information to the Certificateholders or MBIA, collecting and remitting sales and property taxes to taxing authorities, and maintaining the perfected security interest of the Trustee in the Trust Estate. The Servicer (at its expense) shall have full power and authority, acting at its sole discretion, to do any and all things in connection with such managing, servicing, administration, enforcement, collection and such sale of the Equipment that it may deem necessary or desirable, including the prudent delegation of such responsibilities; provided that only with the prior written consent of MBIA shall the Servicer subcontract with another firm to act as subservicer with respect to the Servicer's obligations hereunder and then only so long as the Servicer remains fully responsible and accountable for performance of all obligations of the Servicer hereunder; provided further that the Servicer may subcontract out its remarketing obligations with respect to the Equipment without the consent of MBIA so long as the Servicer remains fully responsible and accountable for the performance of such obligations. Without limiting the generality of the foregoing, the Servicer shall, and is hereby authorized and empowered by the Trustee, subject to Section 3.02 hereof, to execute and deliver (on behalf of itself, the Certificateholders, the Trustee or any of them) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the Lease Contracts and any files or documentation pertaining to the Lease Assets. The Servicer also may, in its sole discretion, waive any late payment charge or penalty, or any other fees that may be collected in the ordinary course of servicing any Lease Contract. Notwithstanding the foregoing, the Servicer shall not, except pursuant to a judicial order from a court of competent jurisdiction, or as otherwise expressly provided in this Agreement, release or waive the right to collect the Scheduled Payments or any unpaid balance on any Lease Contract. The Trustee shall, at the expense of the Servicer, furnish the Servicer with any powers of attorney and other documents necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties hereunder, and the Trustee shall not be responsible for the Servicer's application thereof.
(b) The Servicer shall conduct any Lease Contract management, servicing, administration, collection or enforcement actions in the following manner:
(i) The Servicer, as agent for and on behalf of the IssuerTrustee, MBIA and the Certificateholders, with respect to any Defaulted Lease Contract shall follow such practices and procedures as are normal and consistent with the Servicer's standards and procedures relating to its own lease contracts, lease receivables and vacation credits equipment that are similar to the Lease Contracts, Lease Receivables and the CreditsEquipment, and, in any event, consistent with the standard of care described in Section 3.02 hereof, including without limitation, the taking of appropriate actions to foreclose or otherwise liquidate any such Defaulted Lease Contract, together with the related CreditsEquipment, to collect any Guaranty Amounts, and to enforce the IssuerTransferor's rights in or under the Sale Agreement and the Receivables Purchase Lease Acquisition Agreement. The Servicer shall continue its customary practice of applying payments on Defaulted Contracts and Delinquent Contracts first to delinquent interestAll Recoveries, then to interest and then to principal. All Recoveries Insurance Proceeds or Residual Proceeds in respect of any such Lease Receivable and the related Credits Equipment received by the Servicer or the Subservicer shall be deposited remitted to the Trustee for deposit in the Clearing Collection Account pursuant to Section 3.03(a)3.03 hereof;
(ii) The Servicer may sue ▇▇ enforce or collect upon Lease Contracts as agent for the TrusteeTrustee on behalf of the Certificateholders and MBIA. If the Servicer elects to commence a legal proceeding to enforce a Lease Contract, the act of commencement shall be deemed to be an automatic assignment conveyance of the Lease Contract to the Servicer for purposes of collection only. If, however, in any enforcement suit or legal proceeding it is held that the Servicer may not enforce a Lease Contract on the ground that it is not a real party in interest or a holder entitled to enforce the Lease Contract, then the Trustee on behalf of the Certificateholders and MBIA shall, at the Servicer's request and expense, take such steps as the Servicer deems necessary and instructs the Trustee in writing to take to enforce the Lease Contract, including bringing suit in its name or the name of the Issuer or the names of the NoteholdersCertificateholders or MBIA, and the Trustee shall be indemnified by the Servicer for any such action taken. Any Lease Contract temporarily released from the custody of the Trustee to the Servicer or its agents shall have stamped on it prior to its delivery a legend to the effect that the Lease Contract is the property of Norwest Bank Minnesota, National Association as Trustee, and the Servicer shall promptly return all Lease Contracts when the need therefore no longer exists, provided that no more than 25 Lease Contracts shall be released to the Servicer at any one time;
(iii) The Servicer shall exercise any rights of recourse against third parties that exist with respect to any Lease Contract in accordance with the Servicer's usual practice and applicable law. In exercising recourse rightsand, in any event, consistent with the Servicer is authorized on the Trustee's behalf to reassign the Contract to the person against whom recourse exists to the extent necessary, and at the price set forth standard of care described in the document creating the recourse. The Servicer will not reduce or diminish such recourse rights, except to the extent that it exercises such right;
(iv) The Servicer may not accept Substitute Contracts that do not comply with Section 3.10 hereof, Sections 3.03 and 3.04 of the Receivables Purchase Agreement, Sections 3.03 and 3.04 of the Sale Agreement and Section 4.03 of the Indenture;
(v) The Servicer may waive, modify or vary any terms of any Contract or consent to the postponement of strict compliance with any such term if in the Servicer's reasonable and prudent determination such waiver, modification or postponement is not materially adverse to the Noteholders; provided, however, that except as otherwise expressly permitted with respect to an Upgrade, (A) the Servicer shall not forgive any payment, and (B) the Servicer shall not permit any modification, waivers, variation or postponements with respect to any Contract that would decrease the Scheduled Payment, defer the payment of any principal or interest or any
(vi) Notwithstanding any provision to the contrary contained in this Agreement, the Servicer or the Subservicer shall exercise any right under a Contract to accelerate the unpaid Scheduled Payments, due or to become due thereunder in such a manner as to maximize the net proceeds available to the Issuer; provided, however, that the Servicer will not accelerate any Scheduled Payment unless permitted to do so by the terms of the Contract and under applicable law.3.02
Appears in 1 contract
Responsibilities of Servicer. (a) The Servicer, for the benefit of the Noteholders, shall be responsible for, and shall, in accordance with its customary practices,, pursue the managing, servicing, administering, enforcing and making of collections on the Contracts and the Related Security, the enforcement of the Trustee's security interest in the Receivables and the Related Security granted pursuant to the Indenture, and, if applicable, the resale of the Related Security, each in accordance with applicable law and the standards and procedures set forth in this Agreement and any related provisions of the Indenture and the Receivables Purchase Agreement. The Servicer's responsibilities shall include collecting and posting of all payments, responding to inquiries of Obligors, investigating delinquencies, accounting for collections and furnishing monthly and annual statements to the Trustee, the Noteholders and the Rating Agencies with respect to payments and using its best efforts to maintain the perfected security interest of the Trustee in those items of the Trust Estate in which the Trustee has a perfected security interest. Subject to the terms and conditions of this Agreement, the Servicer (at its expense), acting alone or through a subservicer, shall have full power and authority, acting at its sole discretion, to do any and all things in connection with such managing, servicing, administration, enforcement, collection and such resale of the Related Security that it may deem necessary or desirable and in the best interests of the Noteholders, including the prudent delegation of such responsibilities. Without limiting the generality of the foregoing, the Servicer, in its own name, shall, and is hereby authorized and empowered by the Trustee, subject to Section 3.02 hereof, to execute and deliver (on behalf of itself, the Noteholders, the Trustee or any of them) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the Contracts, the Mortgage Notes, the Custodian Files and the Contract Files. Subject to the terms and conditions of this Agreement, the Servicer, also may, in its sole discretion, waive any late payment charge or penalty, or any other fees that may be collected in the ordinary course of servicing any Contract. Notwithstanding the foregoing, the Servicer, shall not, except pursuant to a judicial order from a court of competent jurisdiction, or as otherwise expressly provided in this Agreement, release or waive the right to collect the Scheduled Payments or any unpaid balance on any Contract. The Trustee shall, at the request and expense of the Servicer, furnish the Servicer, with any powers of attorney and other documents necessary or appropriate to enable the Servicer to carry out their servicing and administrative duties hereunder, and the Trustee shall not be responsible for the Servicer's application thereof. Notwithstanding any delegation of its responsibilities hereunder, the Servicer shall remain primarily liable for the full performance of its obligations hereunder.
(b) The Servicer shall conduct any Contract management, servicing, administration, collection or enforcement actions with respect to the Collateral in the following manner:
(i) The Servicer, as agent for and on behalf of the Issuer, with respect to any Defaulted Contract shall follow such practices and procedures as are normal and consistent with the Servicer's standards and procedures relating to its own contracts, receivables and mortgage loans, receivables, vacation credits and fractional interests that are similar to the Contracts, Receivables the Receivables, the Vacation Credits and the CreditsFractional Interests, including without limitation, the taking of appropriate actions to foreclose or otherwise liquidate any such Defaulted Contract, together with the related Credits, to collect any Guaranty Amounts, Related Security and to enforce the Issuer's rights in or under the Sale Agreement and the Receivables Purchase Agreement. The Servicer shall continue its customary practice of applying payments on Defaulted Contracts and Delinquent Contracts first to delinquent interest, then to interest and then to principal. All Recoveries or Residual Proceeds in respect of any such Receivable and the related Credits Related Security received by the Servicer or the Subservicer shall be deposited in the Clearing Local Bank Account pursuant to Section 3.03(a);
(ii) The Servicer may sue s▇▇ to enforce or collect upon Contracts as agent for the Trustee. If the Servicer elects to commence a legal proceeding to enforce a ContractContract or Mortgage Loan, the act of commencement shall be deemed to be an automatic assignment of the Contract such Loan Document to the Servicer for purposes of collection only. If, however, in any enforcement suit or legal proceeding it is held that the Servicer may not enforce a Contract or Mortgage Loan on the ground that it is not a real party in interest or a holder entitled to enforce the Contractsuch Loan Document, then the Trustee shall, at the Servicer's request and expense, take such steps as the Servicer deems necessary and instructs the Trustee in writing to take to enforce the Contractsuch Loan Document, including bringing suit in its name or the name of the Issuer or the names of the Noteholders, and the Trustee shall be indemnified by the Servicer for any such action taken;
(iii) The Servicer shall exercise any rights of recourse against third parties that exist with respect to any Contract Loan Document in accordance with the Servicer's usual practice and applicable law. In exercising recourse rights, the Servicer is authorized on the Trustee's behalf to reassign the Contract or Mortgage Loan, as applicable, to the person against whom recourse exists to the extent necessary, and at the price set forth in the document creating the recourse. The Servicer will not reduce or diminish such recourse rights, except to the extent that it exercises such right;
(iv) The Servicer may will not accept allow any substitution of a Substitute Contracts Contract that do does not comply with Section 3.10 hereof, Sections 3.03 and 3.04 of the Receivables Purchase Agreement, Sections 3.03 and 3.04 of the Sale Agreement and Section 4.03 of the IndentureIndenture and the definition of Eligible Contract;
(v) The Servicer may waive, modify or vary any terms of any Contract or consent to the postponement of strict compliance with any such term if in the Servicer's reasonable and prudent determination such waiver, modification or postponement is not materially adverse to the Noteholders; provided, however, that except as otherwise expressly permitted with respect to an Upgrade, (A) the Servicer shall not forgive any payment, and (B) the Servicer shall not permit any modification, waivers, variation or postponements with respect to any Contract that would decrease the Scheduled Payment, decrease the interest rate, defer the payment of any principal or interest or anyany Scheduled Payment, reduce the Collateral Value of such Contract (except in connection with actual payments attributable to such Collateral Value), or prevent the complete amortization of the Collateral Value of such Contract from occurring by the Calculation Date preceding the Stated Maturity with respect to such Notes. The Monthly Servicer's Report shall indicate any modification of any Scheduled Payment pursuant to Section 2.02(a)(ii) hereof; and
(vi) Notwithstanding any provision to the contrary contained in this Agreement, the Servicer or the Subservicer shall exercise any right under a Contract to accelerate the unpaid Scheduled Payments, due or to become due thereunder in such a manner as to maximize the net proceeds available to the Issuer; provided, however, that the Servicer will not accelerate any Scheduled Payment unless permitted to do so by the terms of the Contract and under applicable law.
Appears in 1 contract
Responsibilities of Servicer. (a) The Servicer, for the benefit of LFC VI, the Issuer and the Noteholders, shall be responsible for, and shall, in accordance with its customary practices,servicing procedures, pursue the managing, servicing, administering, enforcing and making of collections on the Lease Assets, the enforcement of the Indenture Trustee's security interest in the Lease Assets granted pursuant to the Indenture, and the sale or the releasing of the Equipment upon the expiration or other termination of the related Lease Contract (or repossession thereof without termination), each in accordance with the standards and procedures set forth in this Agreement and any related provisions of the other Transaction Documents. The Servicer's responsibilities shall include monitoring and posting of all payments, responding to inquiries of Obligors, investigating delinquencies, accounting for collections and furnishing monthly and annual statements to the Back-up Servicer, the Indenture Trustee and the Noteholders with respect to payments, making Servicer Advances, providing appropriate federal income tax information to the Indenture Trustee for use in providing information to the Noteholders, collecting and remitting sales and property taxes to taxing authorities, and using its best efforts to maintain the perfected security interest of the Indenture Trustee in the Trust Estate. The Servicer (at its expense), acting alone or through a subservicer, shall have full power and authority, acting at its sole discretion, to do any and all things in connection with such managing, servicing, administration, enforcement, collection and such sale of the Equipment that it may deem necessary or desirable, including the prudent delegation of such responsibilities. Without limiting the generality of the foregoing, the Servicer, in its own name or in the name of a subservicer, shall, and is hereby authorized and empowered by the Indenture Trustee, subject to Section 3.02 hereof, to execute and deliver (on behalf of itself, the Noteholders, the Indenture Trustee or any of them) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the Lease Assets. The Servicer, acting alone or through a subservicer, also may, in its sole discretion, waive any late Servicing Charges or any other fees that may be collected in the ordinary course of servicing any Lease Asset. Notwithstanding the foregoing, neither the Servicer, nor any subservicer, shall, except pursuant to a judicial order from a court of competent jurisdiction, in connection with a permitted repurchase under the Transaction Documents or as otherwise expressly provided in this Agreement, release or waive the right to collect the Scheduled Payments or any unpaid balance on any Lease Contract or Lease Receivable. The Indenture Trustee shall, at the expense of the Servicer, furnish the Servicer, or at the request of the Servicer, any subservicer, with any powers of attorney and other documents necessary or appropriate to enable the Servicer or subservicer to carry out its servicing and administrative duties hereunder, and the Indenture Trustee shall not be responsible for the Servicer's or subservicer's application thereof. Notwithstanding the appointment by the Servicer of a subservicer hereunder, the Servicer shall remain liable for the full performance of its obligations hereunder.
(b) The Servicer (and any subservicer) shall conduct any Contract its management, servicing, administration, collection or enforcement actions with respect to the Lease Assets in the following manner:
(i) The Servicer, as agent for and on behalf of the IssuerAssignees, with respect to any Defaulted Lease Contract shall follow such practices and procedures as are normal and consistent with the Servicer's standards and procedures relating to its own lease contracts, lease receivables and vacation credits equipment that are similar to the ContractsLease Assets, Receivables and and, in any event, consistent with the Creditsstandard of care described in Section 3.02 hereof, including without limitation, the taking of appropriate actions to foreclose or otherwise liquidate any such Defaulted Lease Contract, together with the related CreditsEquipment, to collect any Guaranty Amounts, and to enforce LFC VI's and the Issuer's rights in or under the Sale Lease Acquisition Agreement and the Receivables Purchase Agreement. The Servicer shall continue its customary practice of applying payments on Defaulted Contracts All Insurance Proceeds, Guaranty Amounts and Delinquent Contracts first to delinquent interest, then to interest and then to principal. All other Recoveries or Residual Proceeds in respect of any such Receivable Defaulted Lease Contract and the related Credits Lease Receivables and Equipment received by the Servicer or the Subservicer shall be deposited remitted to the Indenture Trustee for deposit in the Clearing Collection Account pursuant to Section 3.03(a)3.03(c) hereof;
(ii) The Servicer may sue ▇▇▇ to enforce or collect upon Contracts Lease Assets as agent for LFC VI, the Issuer and the Indenture Trustee. If the Servicer elects to commence a legal proceeding to enforce a ContractLease Asset, the act of commencement shall be deemed to be an automatic assignment of the Contract Lease Asset to the Servicer for purposes of collection only. If, however, in any enforcement suit or legal proceeding it is held that the Servicer may not enforce a Contract Lease Asset on the ground that it is not a real party in interest or a holder entitled to enforce the ContractLease Asset, then the Indenture Trustee ,on behalf of the Noteholders (or LFC VI, as applicable) shall, at the Servicer's request and expense, take such steps as the Servicer deems necessary and instructs the Trustee them in writing to take to enforce the ContractLease Asset, including bringing suit in its name or the name of the Issuer Issuer, as beneficial owner of the Lease Receivable, LFC VI as beneficial owner of the Equipment, or the names of the Noteholders, as third party beneficiaries thereunder, and the Indenture Trustee shall be indemnified by the Servicer for any such action taken. Any Lease Contract temporarily released from the custody of the Indenture Trustee to the Servicer or its agents shall have stamped on it prior to its delivery a legend to the effect that the Lease Receivable is the property of the Issuer, the Lease Contract and the Equipment is the property of LFC VI and all of the foregoing have been pledged to Norwest Bank Minnesota, National Association as Indenture Trustee;
(iii) The Servicer shall exercise any rights of recourse against third parties that exist with respect to any Contract Lease Asset in accordance with the Servicer's usual practice and applicable lawand, in any event, consistent with the standard of care described in Section 3.02 hereof. In exercising recourse rights, the Servicer is authorized on the Indenture Trustee's behalf to reassign the Contract Lease Asset to the person against whom recourse exists to the extent necessary, and at the price set forth in the document creating the recourse. The Servicer will not reduce or diminish such recourse rights, except to the extent that it exercises such right;
(iv) The Servicer may not accept allow substitutions of Substitute Lease Receivables or Substitute Lease Contracts that do not comply with Section 3.10 3.09 hereof, Sections 3.03 and 3.04 of the Lease Acquisition Agreement, Sections 3.03 and 3.04 of the Receivables Purchase Agreement, Sections 3.03 and 3.04 of the Sale Agreement and Section 4.03 Sections 4.04 and 4.05 of the Indenture, as applicable. If an Obligor requests a financing of an upgrade to any Equipment, the Servicer shall either (A) include such upgrade on an existing Lease Contract and treat the Scheduled Payments related thereto as an Additional Lease Contract for all purposes of the Transaction Documents, or (B) originate a separate lease contract for such Obligor;
(v) The Servicer may waive, modify or vary any terms of any Lease Contract or consent to the postponement of strict compliance with any such term if in the Servicer's reasonable and prudent determination such waiver, modification or postponement is not materially adverse to the Noteholders; provided, however, that except as otherwise expressly permitted with respect to an Upgrade, (A) the Servicer shall not forgive any paymentpayment of -------- ------- rent, and (B) the Servicer shall not permit any modification, waivers, variation or postponements modification with respect to any Lease Contract that would decrease the Scheduled Payment, defer the payment of any principal or interest or anyany Scheduled Payment, reduce the Implicit Principal Balance (except in connection with actual payments attributable to such Implicit Principal Balance), or prevent the complete amortization of the Implicit Principal Balance from occurring by the Calculation Date preceding the Stated Maturity of the Notes. The Servicer shall provide the Back-up Servicer and the Indenture Trustee with an Amended Lease Collateral Schedule to the related Lease Collateral Schedule reflecting any modification of any Scheduled Payment;
(vi) Unless the Obligor has paid an amount not less than the IPB for such Lease Contract plus any related breakage costs payable by the Issuer, the Servicer shall not consent to the termination of any Lease Contract in connection with loss of or damage to the related Equipment or to the prepayment of any Lease Contract;
(vii) Upon termination of a Lease Contract after payment of the last Scheduled Payment due thereunder or in the event that the Servicer or any subservicer in the enforcement of any Lease Contract otherwise (A) acquires title to any item of Equipment with respect to which title was held by the Obligor or (B) reclaims possession of Equipment from the Obligor, the Servicer shall use its best efforts to sell or re-lease such item of Equipment promptly and consistent with the standard of care set forth in Section 3.02 hereof. Any Insurance Proceeds, Recoveries or Residual Proceeds related thereto shall be deposited in accordance with Section 3.03(c) hereof; and
(viii) Notwithstanding any provision to the contrary contained in this Agreement, the Servicer or the Subservicer any subservicer shall exercise any right under a Lease Contract to accelerate the unpaid Scheduled Payments, due or to become due thereunder in such a manner as to maximize the net proceeds available to the IssuerTrust Estate; provided, however, that the Servicer will -------- ------- not accelerate any Scheduled Payment unless permitted to do so by the terms of the Lease Contract and or under applicable law.
(c) The Servicer shall use its best efforts to verify that each computation of Aggregate Eligible IPB and such other related computations made for purposes of any Funding Notice and Monthly Servicing Report shall be made using only those Lease Contracts that, if funded on a prior Acquisition Date, continue to meet as of such date of determination the eligibility criteria set forth in Section 3.01(a) (other than (a)(vi)) and 3.01(b) of the Lease Acquisition Agreement; provided however, that the Servicer shall not exclude from eligibility any Lease Contract solely as a result of the failure of such Lease Contract to meet, after the close of the Accumulation Period, a percentage concentration limit that was otherwise satisfied at the close of the Accumulation Period.
Appears in 1 contract
Sources: Servicing Agreement (Nova Corp \Ga\)
Responsibilities of Servicer. Anything herein to the contrary notwithstanding:
(a) The Servicer, for the benefit of the Noteholders, Servicer shall be responsible forperform its obligations hereunder, and shall, in accordance with the exercise by the Issuer or its customary practices,designee of its rights hereunder shall not relieve the Servicer from such obligations;
(b) The the Servicer shall conduct not have any Contract managementobligation or liability to the Counterparty or any other Person other than the Issuer and, servicing, administration, collection or enforcement actions in the following manner:
(i) The Servicer, except as agent expressly provided for and on behalf of the Issuerhereunder, with respect to any Defaulted Contract shall follow such practices and procedures as are normal and consistent with the Servicer's standards and procedures relating to its own contracts, receivables and vacation credits that are similar to the Contracts, Receivables and the Credits, including without limitation, the taking of appropriate actions to foreclose or otherwise liquidate any such Defaulted Contract, together with the related Credits, to collect any Guaranty Amounts, and to enforce the Issuer's ’s rights in or and obligations under the Sale Counterparty Agreement and or any related agreements, nor shall the Receivables Purchase Agreement. The Servicer shall continue its customary practice be obligated to perform any of applying payments on Defaulted Contracts and Delinquent Contracts first to delinquent interest, then to interest and then to principal. All Recoveries or Residual Proceeds in respect the obligations of any such Receivable and the related Credits received by the Servicer or the Subservicer shall be deposited in the Clearing Account pursuant to Section 3.03(a)of them thereunder;
(iic) The Servicer may sue ▇▇ enforce or collect upon Contracts as agent for the Trustee. If the Servicer elects to commence a legal proceeding to enforce a Contract, the act of commencement shall be deemed agrees to be an automatic assignment bound by the provisions of the Contract Sale and Contribution Agreement to the Servicer for purposes of collection only. If, however, in extent it receives Confidential Information pursuant to this Servicing Agreement or any enforcement suit or legal proceeding it is held that the Servicer may not enforce a Contract on the ground that it is not a real party in interest or a holder entitled to enforce the Contract, then the Trustee shall, at the Servicer's request and expense, take such steps as the Servicer deems necessary and instructs the Trustee in writing to take to enforce the Contract, including bringing suit in its name or the name of the Issuer or the names of the Noteholders, and the Trustee shall be indemnified by the Servicer for any such action takenother Transaction Document;
(iiid) The the Servicer shall exercise any rights of recourse against third parties that exist with respect to any Contract perform its obligations under this Servicing Agreement in accordance with the Servicer's usual practice and applicable law. In exercising recourse rights, the Servicer is authorized on the Trustee's behalf to reassign the Contract to the person against whom recourse exists to the extent necessary, and at the price set forth in the document creating the recourse. The Servicer will not reduce or diminish such recourse rights, except to the extent that it exercises such right;
(iv) The Servicer may not accept Substitute Contracts that do not comply with Section 3.10 hereof, Sections 3.03 and 3.04 of the Receivables Purchase Agreement, Sections 3.03 and 3.04 of the Sale Agreement and Section 4.03 of the Indenture;
(v) The Servicer may waive, modify or vary any terms of any Contract or consent to the postponement of strict compliance with any such term if in the Servicer's its reasonable and prudent determination such waiver, modification or postponement is not materially adverse servicing procedures for servicing assets comparable to the NoteholdersIssuer’s rights and obligations under the Counterparty Agreement for its own account or for others and in any event with such care as a reasonably prudent servicer would use to service and administer the Issuer’s rights and obligations under the Counterparty Agreement and not in violation of the Issuer’s obligations under the Transaction Documents; provided, however, that except as otherwise expressly permitted with respect to an Upgrade, (A) the Servicer shall not forgive any paymentbe obligated to use separate servicing procedures, offices, employees or accounts for servicing the Issuer’s rights and obligations under the Counterparty Agreement from the procedures, offices, employees and accounts used by the Servicer in connection with servicing other assets comparable to the Issuer’s rights and obligations under the Counterparty Agreement; and
(Be) the Servicer shall not permit and any modificationmember, waiversdirector, variation officer, employee or postponements with respect to agent of the Servicer may rely in good faith on any Contract that would decrease the Scheduled Payment, defer the payment document of any principal or interest or any
(vi) Notwithstanding any provision to the contrary contained in this Agreement, the Servicer or the Subservicer shall exercise any right under a Contract to accelerate the unpaid Scheduled Payments, due or to become due thereunder in such a manner as to maximize the net proceeds available to the Issuer; provided, however, that the Servicer will not accelerate any Scheduled Payment unless permitted to do so kind prima facie properly executed and submitted by the terms of appropriate Person respecting any matters arising under the Contract and under applicable lawTransaction Documents.
Appears in 1 contract
Sources: Servicing Agreement (Theravance Inc)
Responsibilities of Servicer. (a) The Servicer, for the benefit of the Noteholders, shall be responsible for, and shall, in accordance with its customary practices,, pursue the managing, servicing, administering, enforcing and making of collections on the Contracts and the Related Security, the enforcement of the Trustee's security interest in the Receivables and the Related Security granted pursuant to the Indenture, and, if applicable, the resale of the Related Security, each in accordance with applicable law and the standards and procedures set forth in this Agreement and any related provisions of the Indenture and the Receivables Purchase Agreement. The Servicer's responsibilities shall include collecting and posting of all payments, responding to inquiries of Obligors, investigating delinquencies, accounting for collections and furnishing monthly and annual statements to the Trustee, the Noteholders and the Rating Agencies with respect to payments and using its best efforts to maintain the perfected security interest of the Trustee in the Trust Estate (except with respect to the Vacation Credits). Subject to the terms and conditions of this Agreement, the Servicer (at its expense), acting alone or through a subservicer, shall have full power and authority, acting at its sole discretion, to do any and all things in connection with such managing, servicing, administration, enforcement, collection and such resale of the Related Security that it may deem necessary or desirable and in the best interests of the Noteholders, including the prudent delegation of such responsibilities. Without limiting the generality of the foregoing, the Servicer, in its own name, shall, and is hereby authorized and empowered by the Trustee, subject to Section 3.02 hereof, to execute and deliver (on behalf of itself, the Noteholders, the Trustee or any of them) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the Contracts, the Mortgage Notes, the Custodian Files and the Contract Files. Subject to the terms and conditions of this Agreement, the Servicer, also may, in its sole discretion, waive any late payment charge or penalty, or any other fees that may be collected in the ordinary course of servicing any Contract. Notwithstanding the foregoing, the Servicer, shall not, except pursuant to a judicial order from a court of competent jurisdiction, or as otherwise expressly provided in this Agreement, release or waive the right to collect the Scheduled Payments or any unpaid balance on any Contract. The Trustee shall, at the expense of the Servicer, furnish the Servicer, or at the request of the Servicer, with any powers of attorney and other documents necessary or appropriate to enable the Servicer to carry out their servicing and administrative duties hereunder, and the Trustee shall not be responsible for the Servicer's application thereof. Notwithstanding any delegation of its responsibilities hereunder, the Servicer shall remain primarily liable for the full performance of its obligations hereunder.
(b) The Servicer shall conduct any Contract management, servicing, administration, collection or enforcement actions with respect to the Collateral in the following manner:
(i) The Servicer, as agent for and on behalf of the Issuer, with respect to any Defaulted Contract shall follow such practices and procedures as are normal and consistent with the Servicer's standards and procedures relating to its own contracts, receivables and mortgage loans, receivables, vacation credits and fractional interests that are similar to the Contracts, Receivables the Receivables, the Vacation Credits and the CreditsFractional Interests, including without limitation, the taking of appropriate actions to foreclose or otherwise liquidate any such Defaulted Contract, together with the related Credits, to collect any Guaranty Amounts, Related Security and to enforce the Issuer's rights in or under the Sale Agreement and the Receivables Purchase Agreement. The Servicer shall continue its customary practice of applying payments on Defaulted Contracts and Delinquent Contracts first to delinquent interest, then to interest and then to principal. All Recoveries or Residual Proceeds in respect of any such Receivable and the related Credits Related Security received by the Servicer or the Subservicer shall be deposited in the Clearing Local Bank Account pursuant to Section 3.03(a);
(ii) The Servicer may sue ▇▇ enforce or collect upon Contracts as agent for the Trustee. If the Servicer elects to commence a legal proceeding to enforce a ContractContract or Mortgage Loan, the act of commencement shall be deemed to be an automatic assignment of the Contract such Loan Document to the Servicer for purposes of collection only. If, however, in any enforcement suit or legal proceeding it is held that the Servicer may not enforce a Contract or Mortgage Loan on the ground that it is not a real party in interest or a holder entitled to enforce the Contractsuch Loan Document, then the Trustee shall, at the Servicer's request and expense, take such steps as the Servicer deems necessary and instructs the Trustee in writing to take to enforce the Contractsuch Loan Document, including bringing suit in its name or the name of the Issuer or the names of the Noteholders, and the Trustee shall be indemnified by the Servicer for any such action taken;
(iii) The Servicer shall exercise any rights of recourse against third parties that exist with respect to any Contract Loan Document in accordance with the Servicer's usual practice and applicable law. In exercising recourse rights, the Servicer is authorized on the Trustee's behalf to reassign the Contract or Mortgage Loan, as applicable, to the person against whom recourse exists to the extent necessary, and at the price set forth in the document creating the recourse. The Servicer will not reduce or diminish such recourse rights, except to the extent that it exercises such right;
(iv) The Servicer may will not accept allow any substitution of a Substitute Contracts Contract that do does not comply with Section 3.10 hereof, Sections 3.03 and 3.04 of the Receivables Purchase Agreement, Sections 3.03 and 3.04 of the Sale Agreement and Section 4.03 of the IndentureIndenture and the definition of Eligible Contract;
(v) The Servicer may waive, modify or vary any terms of any Contract or consent to the postponement of strict compliance with any such term if in the Servicer's reasonable and prudent determination such waiver, modification or postponement is not materially adverse to the Noteholders; provided, however, that except as otherwise expressly permitted with respect to an Upgrade, (A) the Servicer shall not forgive any payment, and (B) the Servicer shall not permit any modification, waivers, variation or postponements with respect to any Contract that would decrease the Scheduled Payment, decrease the interest rate, defer the payment of any principal or interest or anyany Scheduled Payment, reduce the Collateral Value of such Contract (except in connection with actual payments attributable to such Collateral Value), or prevent the complete amortization of the Collateral Value of such Contract from occurring by the Calculation Date preceding the Stated Maturity with respect to such Notes. The Monthly Servicer's Report shall indicate any modification of any Scheduled Payment pursuant to Section 2.02(a)(ii) hereof; and
(vi) Notwithstanding any provision to the contrary contained in this Agreement, the Servicer or the Subservicer shall exercise any right under a Contract to accelerate the unpaid Scheduled Payments, due or to become due thereunder in such a manner as to maximize the net proceeds available to the Issuer; provided, however, that the Servicer will not accelerate any Scheduled Payment unless permitted to do so by the terms of the Contract and under applicable law.
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Responsibilities of Servicer. (a) The Servicer, for the benefit of the Noteholders, shall be responsible for, and shall, in accordance with its customary practices,, pursue the managing, servicing, administering, enforcing and making of collections on the Contracts, the Vacation Credits, the enforcement of the Trustee's security interest in the Receivables and the Vacation Credits granted pursuant to the Indenture, and, if applicable, the resale of the Vacation Credits, each in accordance with applicable law and the standards and procedures set forth in this Agreement and any related provisions of the Indenture and the Receivables Purchase Agreement. The Servicer's responsibilities shall include collecting and posting of all payments, responding to inquiries of Obligors, investigating delinquencies, accounting for collections and furnishing monthly and annual statements to the Trustee, the Noteholders and the Rating Agencies with respect to payments and using its best efforts to maintain the perfected security interest of the Trustee in the Trust Estate (except with respect to the Vacation Credits). Subject to the terms and conditions of this Agreement, the Servicer (at its expense), acting alone or through a subservicer, shall have full power and authority, acting at its sole discretion, to do any and all things in connection with such managing, servicing, administration, enforcement, collection and such resale of the Vacation Credits that it may deem necessary or desirable and in the best interests of the Noteholders, including the prudent delegation of such responsibilities. Without limiting the generality of the foregoing, the Servicer, in its own name, shall, and is hereby authorized and empowered by the Trustee, subject to Section 3.02 hereof, to execute and deliver (on behalf of itself, the Noteholders, the Trustee or any of them) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the Contracts, the Collateral Agent Files and the Contract Files. Subject to the terms and conditions of this Agreement, the Servicer, also may, in its sole discretion, waive any late payment charge or penalty, or any other fees that may be collected in the ordinary course of servicing any Contract. Notwithstanding the foregoing, the Servicer, shall not, except pursuant to a judicial order from a court of competent jurisdiction, or as otherwise expressly provided in this Agreement, release or waive the right to collect the Scheduled Payments or any unpaid balance on any Contract. The Trustee shall, at the expense of the Servicer, furnish the Servicer, or at the request of the Servicer, with any powers of attorney and other documents necessary or appropriate to enable the Servicer to carry out their servicing and administrative duties hereunder, and the Trustee shall not be responsible for the Servicer's application thereof. Notwithstanding any delegation of its responsibilities hereunder, the Servicer shall remain primarily liable for the full performance of its obligations hereunder.
(b) The Servicer shall conduct any Contract management, servicing, administration, collection or enforcement actions in the following manner:
(i) The Servicer, as agent for and on behalf of the Issuer, with respect to any Defaulted Contract shall follow such practices and procedures as are normal and consistent with the Servicer's standards and procedures relating to its own contracts, receivables and vacation credits that are similar to the Contracts, Receivables and the Vacation Credits, including without limitation, the taking of appropriate actions to foreclose or otherwise liquidate any such Defaulted Contract, together with the related Credits, to collect any Guaranty Amounts, Vacation Credits and to enforce the Issuer's rights in or under the Sale Agreement and the Receivables Purchase Agreement. The Servicer shall continue its customary practice of applying payments on Defaulted Contracts and Delinquent Contracts first to delinquent interest, then to interest and then to principal. All Recoveries or Residual Proceeds in respect of any such Receivable and the related Vacation Credits received by the Servicer or the Subservicer shall be deposited in the Clearing Local Bank Account pursuant to Section 3.03(a);
(ii) The Servicer may sue ▇▇▇ to enforce or collect upon Contracts as agent for the Trustee. If the Servicer elects to commence a legal proceeding to enforce a Contract, the act of commencement shall be deemed to be an automatic assignment of the Contract to the Servicer for purposes of collection only. If, however, in any enforcement suit or legal proceeding it is held that the Servicer may not enforce a Contract on the ground that it is not a real party in interest or a holder entitled to enforce the Contract, then the Trustee shall, at the Servicer's request and expense, take such steps as the Servicer deems necessary and instructs the Trustee in writing to take to enforce the Contract, including bringing suit in its name or the name of the Issuer or the names of the Noteholders, and the Trustee shall be indemnified by the Servicer for any such action taken;
(iii) The Servicer shall exercise any rights of recourse against third parties that exist with respect to any Contract in accordance with the Servicer's usual practice and applicable law. In exercising recourse rights, the Servicer is authorized on the Trustee's behalf to reassign the Contract to the person against whom recourse exists to the extent necessary, and at the price set forth in the document creating the recourse. The Servicer will not reduce or diminish such recourse rights, except to the extent that it exercises such right;
(iv) The Servicer may not accept Substitute Contracts that do not comply with Section 3.10 hereof, Sections 3.03 and 3.04 of the Receivables Purchase Agreement, Sections 3.03 and 3.04 of the Sale Agreement and Section 4.03 of the IndentureIndenture and the definition of Eligible Contract;
(v) The Servicer may waive, modify or vary any terms of any Contract or consent to the postponement of strict compliance with any such term if in the Servicer's reasonable and prudent determination such waiver, modification or postponement is not materially adverse to the Noteholders; provided, however, that except as otherwise expressly permitted with respect to an Upgrade, (A) the Servicer shall not forgive any payment, and (B) the Servicer shall not permit any modification, waivers, variation or postponements with respect to any Contract that would decrease the Scheduled Payment, decrease the interest rate, defer the payment of any principal or interest or anyany Scheduled Payment, reduce the Collateral Value of such Contract (except in connection with actual payments attributable to such Collateral Value), or prevent the complete amortization of the Collateral Value of such Contract from occurring by the Calculation Date preceding the Stated Maturity with respect to such Notes. The Monthly Servicer's Report shall indicate any modification of any Scheduled Payment pursuant to Section 2.02(a)(ii) hereof; and
(vi) Notwithstanding any provision to the contrary contained in this Agreement, the Servicer or the Subservicer shall exercise any right under a Contract to accelerate the unpaid Scheduled Payments, due or to become due thereunder in such a manner as to maximize the net proceeds available to the Issuer; provided, however, that the Servicer will not accelerate any Scheduled Payment unless permitted to do so by the terms of the Contract and under applicable law.
Appears in 1 contract
Responsibilities of Servicer. (a) The Servicer, for the benefit of MBIA and the Noteholders, shall be responsible for, and shall, in accordance with its customary practices,servicing procedures, pursue the managing, servicing, administering, enforcing and making of collections on the Lease Contracts, the Equipment and any Insurance Policies, the enforcement of the Indenture Trustee's security interest in the Lease Contracts, Lease Receivables and Equipment granted pursuant to the Indenture, and the sale or the releasing of the Equipment upon the expiration or other termination of the related Lease Contract (or repossession thereof without termination), each in accordance with the standards and procedures set forth in the Servicing Agreement and any related provisions of the Indenture and Lease Acquisition Agreement. The Servicer's responsibilities shall include collecting and posting of all payments, responding to inquiries of Customers, investigating delinquencies, accounting for collections and furnishing monthly and annual statements to the Back-up Servicer, the Indenture Trustee, MBIA, the Rating Agencies and the Noteholders with respect to payments, making Servicer Advances, providing appropriate federal income tax information to the Indenture Trustee for use in providing information to the Noteholders or MBIA, collecting and remitting sales and property taxes to taxing authorities, and using its best efforts to maintain the perfected security interest of the Indenture Trustee in the Trust Estate. The Servicer (at its expense), acting alone or through a subservicer, shall have full power and authority, acting at its sole discretion, to do any and all things in connection with such managing, servicing, administration, enforcement, collection and such sale of the Equipment that it may deem necessary or desirable, including the prudent delegation of such responsibilities. Without limiting the generality of the foregoing, the Servicer, in its own name or in the name of a subservicer, shall, and is hereby authorized and empowered by the Indenture Trustee, subject to Section 3.02 hereof to execute and deliver (on behalf of itself, the Noteholders, the Indenture Trustee or any of them) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the Lease Contracts and any files or documentation pertaining to the Lease Assets. With the prior written consent of MBIA (which consent shall not be unreasonably withheld), the Servicer may subcontract with another firm to act as subservicer that is not acting as a subservicer on the Initial Delivery Date so long as the Servicer remains fully responsible and accountable for performance of all obligations of the Servicer. The Servicer, acting alone or through a subservicer, also may, in its sole discretion, waive any late payment charge or penalty, or any other fees that may be collected in the ordinary course of servicing any Lease Contract. Notwithstanding the foregoing, neither the Servicer, nor any subservicer, shall, except pursuant to a fudicial order from a court of competent jurisdiction, or as otherwise expressly provided in the Servicing Agreement, release or waive the right to collect the Scheduled Payments or any unpaid balance on any Lease Contract. The Indenture Trustee shall, at the expense of the Servicer, furnish the Servicer, or at the request of the Servicer, any subservicer, with any powers of attorney and other documents necessary or appropriate to enable the Servicer or subservicer to carry out its servicing, and administrative duties hereunder, and the Indenture Trustee shall net be responsible for the Servicer's or subservicer's application thereof. Notwithstanding the appointment by the Servicer of a subservicer hereunder, the Servicer shall remain primarily liable for the full performance of its obligations hereunder. 4
(b) The Servicer (or a subservicer) shall conduct any Lease Contract management, servicing, administration, collection or enforcement actions in the following manner:
(i) The Servicer, as agent for and on behalf of the Issuer, with respect to any Defaulted Lease Contract shall follow such practices and procedures as are normal and consistent with the Servicer's standards and procedures relating to its own lease contracts, lease receivables and vacation credits equipment that are similar to the Lease Contracts, Lease Receivables and the CreditsEquipment, including without limitation, the taking of appropriate actions to foreclose or otherwise liquidate any such Defaulted Lease Contract, together with the related CreditsEquipment, to collect any Guaranty Amounts, and to enforce the Issuer's rights in or under the Sale Agreement and the Receivables Purchase Lease Acquisition Agreement. The Servicer shall continue its customary practice of applying payments on Defaulted Contracts and Delinquent Contracts first to delinquent interestAll Recoveries, then to interest and then to principal. All Recoveries Insurance Proceeds or Residual Proceeds in respect of any such Lease Receivable and the related Credits Equipment received by the Servicer or the Subservicer shall be deposited remitted to the Indenture Trustee for deposit in the Clearing Collection Account pursuant to Section 3.03(a)) hereof;
(ii) The Servicer may sue ▇▇ to enforce or collect upon Lease Contracts as agent for the Issuer and the Indenture Trustee, on behalf of the Noteholders and MBIA. If the Servicer elects to commence a legal proceeding to enforce a Lease Contract, the act of commencement shall be deemed to be an automatic assignment of the Lease Contract to the Servicer for purposes of collection only. If, however, in any enforcement suit or legal proceeding it is held that the Servicer may not enforce a Lease Contract on the ground that it is not a real party in interest or a holder entitled to enforce the Lease Contract, then the Indenture Trustee on behalf of the Noteholders and MBIA shall, at the Servicer's request and expense, take such steps as the Servicer deems necessary and instructs the Indenture Trustee in writing to take to enforce the Lease Contract, including bringing suit in its name or the name of the Issuer Issuer, as beneficial owner of the Lease Contract, or the names of the NoteholdersNoteholders or MBIA, as third party beneficiaries thereunder, and the Indenture Trustee shall be indemnified by the Servicer for any such action taken;
(iii) The Servicer shall exercise any rights of recourse against third parties that exist with respect to any Lease Contract in accordance with the Servicer's usual practice and applicable lawpractice. In exercising recourse rights, the Servicer is authorized on the Indenture Trustee's behalf to reassign the Lease Contract to the person against whom recourse exists to the extent necessary, and at the price set forth in the document creating the recourse. The Servicer will not reduce or diminish such recourse rights, except to the extent that it exercises such right;
(iv) The Servicer may not accept allow substitutions of Substitute Lease Contracts that do not comply with Section 3.10 hereof, Sections 2.04, 3.03 and 3.04 of the Receivables Purchase Agreement, Sections 3.03 Standard Lease Acquisition Terms and 3.04 Section 4.04 of the Sale Agreement and Section 4.03 of the IndentureStandard Indenture Terms;
(v) The Servicer may waive, modify or vary any terms of any Lease Contract or consent to the postponement of strict compliance with any such term if in the Servicer's reasonable and prudent determination such waiver, modification or postponement is not materially adverse to the NoteholdersNoteholders or MBIA; provided, however, that except as otherwise expressly permitted with respect to an Upgrade, (A) the Servicer shall not forgive any paymentpayment of rent, and (B) the Servicer shall not permit any modification, waivers, variation or postponements modification with respect to any Lease Contract that would decrease the Scheduled Payment, defer the payment of any principal or interest or anyany Scheduled Payment, reduce the Implicit Principal Balance (except in connection with actual payments attributable to such Implicit Principal Balance), or prevent the complete amortization of the Implicit Principal Balance from occurring by the Calculation Date preceding the Stated Maturity of the related Notes. The Servicer shall provide the Back-up Servicer, MBIA and the Indenture Trustee with an Amended Lease Schedule to the related Series Lease Schedule reflecting any modification of any Scheduled Payment;
(vi) The Servicer shall not consent to the termination of any Lease Contract in connection with loss of or damage to the related Equipment unless the Customer has paid an amount not less than the Purchase Price for such Lease Contract, or if less, the maximum amount legally collectible under the related Lease Contract:
(vii) Upon termination of a Lease Contract after payment of the last Scheduled Payment due thereunder or in the event that the Servicer or any subservicer in the enforcement of any Lease Contract otherwise (A) acquires title to any item of Equipment with respect to which title was held by the Customer or (B) reclaims possession of Equipment from the Customer, the Servicer shall use its best efforts to sell or re-lease such item of Equipment promptly and consistent with the standard of care set forth in Section 3.02 hereof. Any Insurance Proceeds, Recoveries or Residual Proceeds related thereto shall be deposited in accordance with Section 3.03(a) hereof: and
(viii) Notwithstanding any provision to the contrary contained in this the Servicing Agreement, the Servicer or the Subservicer any subservicer shall exercise any right under a Lease Contract to accelerate the unpaid Scheduled Payments, due or to become due thereunder in such a manner as to maximize the net proceeds available to the Issuer; Trust Estate: provided, however, that the Servicer will not accelerate any Scheduled Payment unless permitted to do so by the terms of the Lease Contract and or under applicable law.
Appears in 1 contract
Sources: Standard Terms and Conditions of Servicing (American Business Financial Services Inc /De/)