Servicer Termination Events. If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing on any date: (a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Borrower, the Agent or any Lender as required by this Agreement on or before the date such payment, transfer, deposit, instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement and such failure is not cured or waived within three Business Days following the occurrence thereof; (b) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any other Transaction Document to which it is a party as Servicer that continues unremedied (if susceptible to remedy) for a period of 30 days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Agent, any Lender or the Borrower and (ii) the date on which the Servicer becomes aware thereof; (c) an Insolvency Event shall occur with respect to the Servicer; (d) the Servicer shall fail in any material respect to service the Transferred Loans in accordance with the Credit and Collection Policy; (e) the Servicer agrees to or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender without the prior written consent of the Agent and each Lender; (f) any Change in Control of the Servicer is made without the prior written consent of the Agent; (g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006; (h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act; (i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0; (j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement; (k) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certification, if capable of being remedied, shall continue for 30 days without being remedied or cured after the earlier of (i) receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certification; (l) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer (individually or in the aggregate); (m) any default by the Servicer in the making of any payment required to be made with respect to any material recourse debt or other obligation to which it is a party and such default is not cured within the relevant cure period or any such recourse debt or other obligation shall be declared to be due and payable or required to be prepaid (other than by scheduled payment) prior to its maturity; or (n) any two of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ shall cease to be employed by Kohlberg Capital in the capacity of executive officers thereof unless within 120 days of the cessation of such employment, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably satisfactory to the Agent; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied at the expiration of any applicable cure period, the Agent, by written notice to the Servicer, the Trustee and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.26, terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
Appears in 2 contracts
Sources: Loan Funding and Servicing Agreement (Kohlberg Capital CORP), Loan Funding and Servicing Agreement (Kohlberg Capital CORP)
Servicer Termination Events. (a) If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing on any dateoccur:
(ai) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Borrower, the Agent or any Lender as required by this Agreement on or before the date such payment, transfer, deposit, instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement any other Transaction Document and such failure is not cured or waived within shall continue for more than three (3) Business Days following Days; or
(ii) the occurrence thereof;of an Event of Default; or
(biii) except as otherwise provided in this Section 7.18, any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any other Transaction Document to which it is a party as Servicer that continues unremedied (if susceptible to remedy) for a period of 30 thirty (30) days (to the extent such failure is capable of being remedied) after the first to occur of (iA) the date on which written notice (which may be by email) of such failure requiring the same to be remedied shall have been given to the Servicer by the Agent, Administrative Agent or any Lender or the Borrower and (iiB) the date on which a Responsible Officer of the Servicer becomes aware thereof;; provided, however, that breaches of Sections 7.9(b) through (d), (g) through (i), (l), (n) through (w), 7.11 and 7.21 shall not have any cure period and shall constitute Servicer Termination Events upon the breach of any such covenant or agreement; or
(civ) the occurrence of an Insolvency Event shall occur with respect to the Servicer or any Affiliate of the Servicer;; or
(dv) the Servicer shall fail in or any material respect to service the Transferred Loans in accordance with the Credit and Collection Policy;
(e) the Servicer agrees to or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender without the prior written consent of the Agent and each Lender;
(f) any Change in Control of the Servicer is made without the prior written consent of the Agent;
(g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;
Affiliate thereof (i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement;
(k) any representation, warranty or certification made by the Servicer defaults in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certification, if capable of being remedied, shall continue for 30 days without being remedied or cured after the earlier of (i) receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certification;
(l) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer (individually or in the aggregate);
(m) any default by the Servicer in the making of any payment required to be made with respect to under any agreement for borrowed money in excess of $2,500,000 or any other material recourse debt or other obligation agreement to which it is a party and such default is not cured within the relevant cure period or (ii) fails to perform or observe any other condition or covenant, or any other event shall occur or condition exist, under any agreement or instrument relating to any such recourse debt Indebtedness or any other obligation shall be declared material agreement, if the effect of such failure, event or condition is to cause, or to permit the holder or holders of such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause such Indebtedness to be accelerated and become immediately due and payable or required (without regard to be prepaid (other than by scheduled payment) prior to its maturityany subordination terms with respect thereto); or
(nvi) [reserved]; or
(vii) any representation, warranty or certification made by the Servicer in this Agreement or any other Transaction Document or any amendment or modification hereof or thereof, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any other Transaction Document or any amendment or modification hereof or thereof, shall prove to have been incorrect in any material respect as of the time when the same shall have been made or deemed to have been made and the circumstances or conditions causing such representation, warranty or certification to be incorrect shall not have been remedied, eliminated or otherwise cured (to the extent capable of being remedied, eliminated or otherwise cured) for a period of thirty (30) days after the first to occur of (A) the date on which written notice (which may be by email) of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent or any Lender and (B) the date on which a Responsible Officer of the Servicer becomes aware thereof; or
(viii) any director, general partner, managing member, manager or senior officer of the Servicer is indicted for any felonious criminal offense related to the performance of its obligations under this Agreement or the other Transaction Documents or related to the Servicer’s business; or
(ix) one or more acts (including any failure(s) to act) by the Servicer or any Affiliate thereof occurs that constitutes fraud, willful misconduct or a material violation of Applicable Laws (including securities laws) (as determined in a final, non-appealable adjudication by a court of competent jurisdiction); or
(x) the Servicer’s business activities are suspended or terminated by a Governmental Authority; or
(xi) the rendering of one or more final judgments, decrees or orders by a court or arbitrator of competent jurisdiction for the payment of money in excess individually or in the aggregate of $2,500,000 against the Servicer or any Affiliate of the Servicer (exclusive of judgment amounts fully covered by insurance), and the aforementioned parties shall not have either (x) discharged or provided for the discharge of any such judgment, decree or order in accordance with its terms or (y) perfected a timely appeal of such judgment, decree or order and caused the execution of same to be stayed during the pendency of the appeal, in each case, within thirty (30) days from the date of entry thereof or enforcement proceedings are commenced upon such judgment, decree or order; or
(xii) any two of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ or ▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ shall cease fail to be employed by Kohlberg Capital provide active and material participation in the capacity of executive officers thereof unless within 120 days of the cessation of Servicer’s daily activities, including, but not limited to, general management, underwriting and credit approval process, and credit monitoring activities and such employment, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably Persons are not replaced with other individuals satisfactory to the AgentAdministrative Agent in its sole discretion within 90 days; then notwithstanding anything herein to the contrarythen, so long as and in any such Servicer Termination Events shall not have been remedied event, the Administrative Agent shall, at the expiration request, or may with the consent, of any applicable cure period, the AgentRequired Lenders, by written notice to the Servicer, the Trustee and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.267.19, either (i) terminate all of the rights and obligations of the Servicer as Servicer under this AgreementAgreement or (ii) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and simultaneously reappoint the Servicer for a period not to exceed one month (subject to renewal at the sole discretion of the Administrative Agent, acting at the direction of the Required Lenders), at the expiration of which appointment the Servicer’s rights and obligations hereunder shall automatically terminate without further action on the part of any party hereto. In addition to the foregoing, the Administrative Agent may request the assignment of any agreement for services utilized by the Servicer in servicing the Transferred Loans, and the Servicer shall use commercially reasonable efforts to promptly comply or cause the compliance with such request. The Borrower Servicer shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
Appears in 2 contracts
Sources: Credit Agreement (Trinity Capital Inc.), Credit Agreement (Trinity Capital Inc.)
Servicer Termination Events. (a) If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing on any dateday:
(ai) any failure by the Servicer to make any payment, transfer or deposit or as required by this Agreement and such failure shall continue for three (3) Business Days;
(ii) any failure by the Servicer to give instructions or notice to the Borrower, any Managing Agent and/or the Administrative Agent or any Lender as required by this Agreement or to deliver any Required Reports hereunder on or before the date occurring three (3) Business Days after the date such paymentinstructions, transfer, deposit, instruction notice or notice report is required to be made or given, as the case may be, under the terms of this Agreement and such failure is not cured or waived within three Business Days following the occurrence thereofAgreement;
(biii) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any other Transaction Document to which it is a party as Servicer that continues unremedied (if susceptible to remedy) for a period of 30 thirty (30) days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Lender Managing Agent or the Borrower and (ii) the date on which the Servicer becomes or should have become aware thereof;
(c) an Insolvency Event shall occur with respect to the Servicer;
(d) the Servicer shall fail in any material respect to service the Transferred Loans in accordance with the Credit and Collection Policy;
(e) the Servicer agrees to or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender without the prior written consent of the Agent and each Lender;
(f) any Change in Control of the Servicer is made without the prior written consent of the Agent;
(g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;
(i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement;
(kiv) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been false or incorrect in any material respect when made, made and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certificationfailure, if capable of being remediedsusceptible to a cure, shall continue unremedied for 30 a period of thirty (30) days without being remedied or cured after the earlier first to occur of (i) receipt the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Servicer of written notice with respect thereto from the Administrative Agent, any Managing Agent or the Trustee Borrower and (ii) notice thereof to the date on which the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty becomes or certificationshould have become aware thereof;
(lv) the Servicer shall fail to service the Collateral Debt Obligations in accordance with the Servicing Standards;
(vi) an Insolvency Event shall occur with respect to the Servicer;
(vii) the rendering against the Servicer of one a final non-appealable judgment, decree or more final judgments, decrees or orders order for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer U.S. $5,000,000 (individually or in the aggregate)) and the continuance of such judgment, decree or order unsatisfied and in effect for any period of thirty (30) consecutive days without a stay of execution;
(mviii) any default by Material Adverse Change occurs in the financial condition of the Servicer;
(ix) if the Servicer in is an Affiliate of the making Borrower or Originator, any Change-in-Control of any payment required to be made with respect to any material recourse debt or other obligation to which it is a party and such default is not cured within the relevant cure period or any such recourse debt or other obligation shall be declared to be due and payable or required to be prepaid Servicer (other than by scheduled paymentpursuant to an initial public offering of its equity securities) is made without the prior to its maturitywritten consent of the Borrower and the Administrative Agent; or
(nx) any two of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ shall cease to be employed by Kohlberg Capital in if the capacity of executive officers thereof unless within 120 days Servicer is an Affiliate of the cessation Borrower or Originator, the Servicer shall fail to maintain its status as a registered investment advisor under the Investment Advisers Act of such employment1940, Kohlberg Capital hires reputable experienced replacements for such officersas amended. then, reasonably satisfactory to the Agent; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied at the expiration of any applicable cure period, the AgentAdministrative Agent may, or at the direction of the Required Committed Lenders shall, by written notice to the Servicer, the Trustee Servicer and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.267.13, terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
Appears in 2 contracts
Sources: Credit Agreement (GSC Investment Corp.), Credit Agreement (GSC Investment Corp.)
Servicer Termination Events. If (a) Servicer’s right to service pursuant to each Servicing Agreement shall terminate upon the occurrence of any one of the following events (each a “Servicer Termination Event”) shall occur and be continuing on any date:):
(ai) An Event of Default;
(ii) This Servicer Notice is deemed unenforceable;
(iii) Servicer materially breaches or fails to comply with (A) the Servicing Agreement and such breach or failure continues uncured or unremedied for a period of thirty (30) calendar days or Servicer fails to diligently pursue a cure or remedy (without regard to any other cure periods) or (B) this Servicer Notice (relating to the deposit or transfer of funds) and such breach or failure by continues uncured or unremedied for a period of two (2) Business Days (without regard to any other cure periods), in each case, after a Responsible Officer of a Seller Party or Servicer first learns of it;
(iv) Servicer is unable to comply with the eligibility requirements, or ceases to be an approved servicer, of, in each case, GNMA, HUD or VA;
(v) Servicer fails to make any paymentrequired servicing advance, transfer to the extent that such failure would be reasonably likely to impair FHA Mortgage Insurance coverage or deposit VA Loan Guaranty Agreement coverage, with respect to the principal portion of any Mortgage Loan or would be reasonably likely to give instructions rise to a liability to HUD, FHA or notice VA, as determined by Administrative Agent in its good faith discretion;
(vi) Servicer fails to make a required deposit to the Borrower, the Agent or any Lender as required by this Agreement on or before the date such payment, transfer, deposit, instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement and such failure Inbound Account (i) which is not cured within one (1) Business Day of Seller Party’s knowledge of such failure, or waived within three Business Days following (ii) to the occurrence thereofextent such failure or failures occur on multiple occasions (regardless of any subsequent cure);
(vii) Servicer provides a notice of its intent to resign as Servicer of the Mortgage Loans and REO Property and a new Servicer reasonably acceptable to Administrative Agent is not promptly appointed;
(viii) Servicer is subject to FHA, HUD or VA fees or penalties which have not been paid or is subject to a set-off by any of FHA, HUD or VA which (A) is reasonably likely to result in a Servicer Material Adverse Effect or (B) failure or failures occur on a persistent and material basis after notice or knowledge thereof (regardless of any subsequent cure); or
(ix) There shall occur a Servicer Material Adverse Effect, in the determination of Administrative Agent.
(b) any failure on Upon the part occurrence of a Servicer Termination Event at the Servicer duly to observe or perform in any material respect any other covenants or agreements Request of the Servicer set forth in this Agreement or any other Transaction Document to which it is a party as Servicer that continues unremedied (if susceptible to remedy) for a period of 30 days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Lender or the Borrower and (ii) the date on which the Servicer becomes aware thereof;
(c) an Insolvency Event shall occur with respect to the Servicer;
(d) the Servicer shall fail in any material respect transfer the servicing to service the Transferred Loans a successor servicer in accordance with the Credit and Collection Policy;
(e) the Servicer agrees to or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests terms of the Lender without the prior written consent of the Agent and each Lender;
(f) any Change in Control of the Servicer is made without the prior written consent of the Agent;
(g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;
(i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Servicing Agreement;
(k) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certification, if capable of being remedied, shall continue for 30 days without being remedied or cured after the earlier of (i) receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certification;
(l) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer (individually or in the aggregate);
(m) any default by the Servicer in the making of any payment required to be made with respect to any material recourse debt or other obligation to which it is a party and such default is not cured within the relevant cure period or any such recourse debt or other obligation shall be declared to be due and payable or required to be prepaid (other than by scheduled payment) prior to its maturity; or
(n) any two of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ shall cease to be employed by Kohlberg Capital in the capacity of executive officers thereof unless within 120 days of the cessation of such employment, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably satisfactory to the Agent; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied at the expiration of any applicable cure period, the Agent, by written notice to the Servicer, the Trustee and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.26, terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
Appears in 2 contracts
Sources: Master Repurchase Agreement (Walter Investment Management Corp), Master Repurchase Agreement (Walter Investment Management Corp)
Servicer Termination Events. If The occurrence and continuance of any one of the following events (shall constitute a “Servicer Termination Event”) shall occur and be continuing on any date” hereunder:
(a) any failure by the Servicer to make any payment, transfer transfer, or deposit or to give instructions or notice to the Borrower, the Agent or any Lender as required by this Agreement on or before the date such paymentit as required by any Basic Document, transferto which it is a party, deposit, instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement and such which failure is not cured or waived remedied within three two (2) Business Days following the occurrence thereofDays;
(b) any failure on the part of by the Servicer duly to observe or perform in any material respect any other covenants or agreements of deliver the Servicer set forth in this Agreement or any other Transaction Document to which it is a party as Servicer that continues unremedied (if susceptible to remedy) for a period of 30 days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer Monthly Report by the AgentReporting Date, any Lender or the Borrower and which failure is not remedied within two (ii2) the date on which the Servicer becomes aware thereofBusiness Days;
(c) an Insolvency Event shall occur with respect to the Servicer or any Subsidiary of the Servicer;
(d) any failure by the Servicer shall fail duly to observe or perform in any material respect any other covenant or agreement of the Servicer set forth in this Agreement or the other Basic Documents to service which the Transferred Loans in accordance with Servicer is a party, which such failure remains unremedied for thirty (30) days after the Credit and Collection Policyearlier of knowledge thereof by the Servicer or after the date on which written notice of such failure shall have been given to the Servicer;
(e) the Servicer agrees to or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender without the prior written consent of the Agent and each Lender;
(f) any Change in Control of the Servicer is made without the prior written consent of the Agent;
(g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;
(i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement;
(k) any representation, warranty warranty, or certification made by the Servicer in this Agreement any Basic Document to which it is a party or in any certificate delivered pursuant to this Agreement any Basic Document to which it is a party shall prove to have been false or otherwise incorrect in any respect when made, and deemed made, or delivered, which such incorrect representation, warranty or certification can materially and adversely affects the rights or interests of the Secured Parties and, if able to be cured, shall not have been cured for thirty (30) days after the earlier of the date on which the Servicer first has knowledge thereof or the date on which written notice of such failure shall have been given to the Servicer;
(f) with respect to the initial Servicer only, either Lendbuzz Floorplan or a Subsidiary of Lendbuzz Floorplan shall default under any Indebtedness having a principal amount of $5,000,000 or greater, and (i) such default continues after the applicable grace period, if any, specified in the agreements or instruments relating to such Indebtedness, (ii) such default has not been waived by the required lenders, creditors, or similarly denominated parties under the agreements or instruments relating to such Indebtedness and in the manner specified in such agreements or instruments, and (iii) as a consequence of such default, either the required lenders, creditors, or similarly denominated parties have accelerated the maturity of such Indebtedness, or the acceleration of the maturity of such Indebtedness has occurred automatically, in all cases as specified in the agreements or instruments relating to such Indebtedness and in all cases the result of which acceleration (regardless of how it is denominated in such agreements or instruments) is to require the immediate repayment of principal on such Indebtedness;
(g) any material provision of any Basic Document to which the Servicer is a party shall in whole or in part, cease to be in full force and effect or cease to be the legally valid, binding and enforceable obligation of the Servicer;
(h) (i) one or more final nonappealable judgments shall be entered against the Servicer by one or more courts of competent jurisdiction which would reasonably be expected to have a material adverse effect Material Adverse Effect on the interests Servicer; (ii) one or more monetary settlements shall be entered into by the Servicer with any Person which would reasonably be expected to have a Material Adverse Effect on the Servicer; (iii) the IRS shall file notice of a Lien pursuant to Section 6323 of the Code with regard to any party hereto, assets of the Servicer and such incorrect representation, warranty Lien shall not have been released within 30 days; or certification, if capable (iv) the Pension Benefit Guaranty Corporation shall file notice of being remedied, a Lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Servicer and such Lien shall continue for not have been released within 30 days without being remedied or cured after the earlier of days;
(i) receipt by the Servicer of written notice any Change in Control shall occur with respect thereto from to Lendbuzz Floorplan without the Agent prior Consent of the Administrative Agent;
(j) an Event of Default shall have occurred and is continuing and shall not have been waived;
(k) any Regulatory Authority shall have condemned, seized or appropriated, or shall have assumed custody or control of all or any substantial part of the Trustee and (ii) notice thereof property of the Servicer, or shall have taken any action to displace the Servicer by an officer management of the Servicer with actual knowledge or to curtail its authority in the conduct of such incorrect representationits business as the Servicer, warranty or certificationshall have taken any action in the nature of enforcement to remove, limit or restrict the licensing or approval of the Servicer as a servicer of the Contracts;
(l) with respect to the rendering against the Servicer of one or more final judgmentsinitial Servicer, decrees or orders for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer (individually or in the aggregate);a Material Adverse Change with respect to Lendbuzz Floorplan shall have occurred and is continuing and shall not have been waived; and
(m) any default by the Servicer in the making of any payment required to be made with respect to any material recourse debt or other obligation to which it is a party and such default is not cured within the relevant cure period or any such recourse debt or other obligation shall be declared to be due and payable or required to be prepaid (other than by scheduled payment) prior to its maturity; or
(n) any two of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ Limited Guaranty shall cease to be employed by Kohlberg Capital in full force and effect (other than in accordance with its terms) or the capacity Limited Guarantor shall assert that it is not bound by, or otherwise seek to terminate or disaffirm its obligations under, the Limited Guaranty, or shall otherwise claim that the Limited Guaranty is in any way invalid or unenforceable. Upon the occurrence of executive officers thereof unless within 120 days any of the cessation of such employmentforegoing, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably satisfactory to the Agent; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events Event shall not have been remedied at the expiration of within any applicable cure periodperiod or waived in writing by the Required Lenders, the Agentfollowing shall immediately occur without further action: (i) the Revolving Period or Amortization Period, as applicable, shall terminate and no further Loans will be made; (ii) the Administrative Agent (acting at the direction of or with the consent of the Required Lenders) by written notice to the Servicer (with a copy to each Lender, the Backup Servicer, the Trustee and the Backup Servicer Collateral Custodian) (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.26, may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. The Borrower ; (iii) the Administrative Agent may direct the Servicer to direct Collections to an account other than the Remittance Account or the Collection Account; (iv) a Backup Custodian Trigger Event shall pay all reasonable set-up occur and conversion costs associated the Administrative Agent may terminate the Collateral Custodian (if the Collateral Custodian is Lendbuzz Floorplan or an Affiliate of Lendbuzz Floorplan) and cause the Collateral Custodian to deliver, or cause to be delivered, the Receivable Files and the related accounts and records maintained by the Collateral Custodian to Vervent Inc., as successor Collateral Custodian, in accordance with the transfer of servicing rights Backup Servicing Agreement and Section 7.17(f) hereof and (v) the Advance Rate shall be reduced to the Successor Servicer0.0%.
Appears in 2 contracts
Sources: Loan Agreement (Lendbuzz Inc.), Loan Agreement (Lendbuzz Inc.)
Servicer Termination Events. If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing on any dateday:
(ai) any failure by the Servicer to make any payment, transfer or deposit or as required by this Agreement and such failure shall continue for two (2) Business Days;
(ii) any failure by the Servicer to give instructions or notice to the Borrower, any Managing Agent and/or the Administrative Agent or any Lender as required by this Agreement or to deliver any Required Reports hereunder on or before the date occurring two Business Days after the date such paymentinstructions, transfer, deposit, instruction notice or notice report is required to be made or given, as the case may be, under the terms of this Agreement and such failure is not cured or waived within three Business Days following the occurrence thereofAgreement;
(biii) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any other Transaction Document to which it is a party as Servicer that continues unremedied (if susceptible to remedy) for a period of 30 fifteen (15) days after the first to occur of (A) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Managing Agent or the Borrower and (B) the date on which the Servicer becomes or reasonably should have become aware thereof;
(iv) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been false or incorrect in any material respect when made and such failure, if susceptible to a cure, shall continue unremedied for a period of fifteen (15) days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Lender Managing Agent or the Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof;
(c) an Insolvency Event shall occur with respect to the Servicer;
(dv) the Servicer shall fail in any material respect to service the Transferred Loans in accordance with the Credit and Collection Policy;
(evi) an Insolvency Event shall occur with respect to the Servicer;
(vii) the Servicer agrees to or otherwise permits any amendment, modification, change, supplement or rescission of or to materially alter the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender Policy without the prior written consent of the Agent and each LenderRequired Lenders;
(fviii) any financial or asset information reasonably requested by the Administrative Agent or any Managing Agent as provided herein is not provided as requested within five (5) Business Days (or such longer period as the Administrative Agent or such Managing Agent may consent to) of the receipt by the Servicer of such request;
(ix) the rendering against the Servicer of a final judgment, decree or order for the payment of money in excess of U.S. $5,000,000 (individually or in the aggregate) and the continuance of such judgment, decree or order unsatisfied and in effect for any period of 30 consecutive days without a stay of execution;
(x) the failure of the Performance Guarantor to make any payment due with respect to aggregate recourse debt or other obligations with an aggregate principal amount exceeding U.S. $1,000,000 or the occurrence of any event or condition that would permit acceleration of such recourse debt or other obligations if such event or condition has not been waived;
(xi) any Guarantor Event of Default shall occur;
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or a material adverse change occurs with regard to the collectibility of the Transferred Loans, taken as a whole;
(xiii) any Change-in-Control of the Servicer is made without the prior written consent of the Borrower and the Administrative Agent, other than a Change-in-Control of the Servicer that is a result of transfer to a Permitted Holder;
(gxiv) as of any date after the date of the Initial Funding, the Servicer fails Performance Guarantor shall fail to maintain a minimum Net Worth equal to the sum of at least (i) $200,000,000 210,000,000 plus seventy-five (75%ii) percent 50% of any new equity and Subordinated Debt issued by the Performance Guarantor after December 11the Amendment No. 2 Effective Date minus (iii) 50% of any equity and Subordinated Debt retired or redeemed by the Performance Guarantor after the Amendment No. 2 Effective Date; provided that, 2006in no event shall the minimum Net Worth be less than $210,000,000;
(hxv) the Servicer Performance Guarantor shall fail to satisfy the RIC/BDC Requirements;
(xvi) the Performance Guarantor shall fail to maintain its status “asset coverage” (as a business development company or as a registered investment company under defined in and determined pursuant to Section 18 of the 1940 Act, as modified by Section 61 of the 1940 Act) with respect to its “senior securities representing indebtedness” (as defined in Section 18 of the 1940 Act) of at least 150% (or such percentage as may be set forth in Section 18 of the 1940 Act, as modified by Section 61 of the 1940 Act); provided, that for purposes of testing compliance with this Section 7.18(xvi) the impact of the election of ASC 825 or similar accounting guideline with respect to determining the fair value of the debt of the Performance Guarantor on a consolidated basis shall be excluded (for avoidance of doubt, the intent of this language is to cause the debt of the Performance Guarantor to be valued at par value rather than fair value)); or
(xvii) the Performance Guarantor shall pay any cash dividends; provided that the Performance Guarantor shall be permitted to pay cash dividends if the Servicer shall have caused the Performance Guarantor to have delivered a certificate to the Administrative Agent, substantially in the form of Exhibit G hereto, at least 10 Business Days prior to the making of any such cash dividend to the effect that:
(A) the amount of the declared dividend has been determined in good faith by the Board of Directors of the Performance Guarantor on the basis of the most current financial projections of the Performance Guarantor then available for the Related Period (as defined in Exhibit G hereof);
(B) the amount of the declared dividend does not exceed the sum of (i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;net investment income and the net capital gain projected to be realized by the Performance Guarantor for the Related Period based on the financial projections referred to in clause (A) above, and (ii) the amounts deemed by the Performance Guarantor to be considered as having been paid during the prior year in accordance with Section 855(a) of the Code (together clauses (i) and (ii) comprising the “Projected Available Amount”); and
(jC) any failure by to the Servicer extent the declared dividend referred to deliver any Required Reports hereunder on or before in clause (B) above exceeds the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement;
(k) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certification, if capable of being remedied, shall continue for 30 days without being remedied or cured after the earlier sum of (i) receipt the net investment income and the net capital gain actually realized by the Servicer of written notice with respect thereto from Performance Guarantor for the Agent or the Trustee and Related Period, plus (ii) notice thereof the amounts deemed by the Performance Guarantor to be considered as having been paid during the Servicer by an officer prior year in accordance with Section 855(a) of the Servicer with actual knowledge of such incorrect representation, warranty or certification;
Code (lthe “Excess Payment”); then the proposed dividend to be declared by the Performance Guarantor for the immediately ensuing Related Period shall be reduced by any positive amount resulting from the following calculation: (x) the rendering against ensuing Related Period’s proposed declared dividend plus the Servicer of one or more final judgmentsExcess Payment minus (y) the ensuing Related Period’s Projected Available Amount; then, decrees or orders for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer (individually or in the aggregate);
(m) any default by the Servicer in the making of any payment required to be made with respect to any material recourse debt or other obligation to which it is a party and such default is not cured within the relevant cure period or any such recourse debt or other obligation shall be declared to be due and payable or required to be prepaid (other than by scheduled payment) prior to its maturity; or
(n) any two of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ shall cease to be employed by Kohlberg Capital in the capacity of executive officers thereof unless within 120 days of the cessation of such employment, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably satisfactory to the Agent; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied at the expiration of any applicable cure period, the AgentAdministrative Agent may, or at the direction of the Required Lenders shall, by written notice to the Servicer, the Trustee Servicer and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.267.19, either (i) terminate all of the rights and obligations of the Servicer as Servicer under this AgreementAgreement or (ii) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and simultaneously reappoint the Servicer for a period not to exceed one month (subject to renewal at the sole discretion of the Administrative Agent, acting at the direction of the Required Lenders), at the expiration of which appointment the Servicer’s rights and obligations hereunder shall automatically terminate without further action on the part of any party hereto. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
Appears in 2 contracts
Sources: Fifth Amended and Restated Credit Agreement (Gladstone Investment Corporation\de), Credit Agreement (Gladstone Investment Corporation\de)
Servicer Termination Events. If any one of the following events (each, a “Servicer Termination Event”) shall occur and be continuing on any dateoccur:
(ai) any A failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Borrower, the Agent or any Lender as required by this Agreement on or before the date such payment, transfer, deposit, instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement and such failure is not cured or waived within three Business Days following the occurrence thereof;
(b) any failure on the part of the Sub-Servicer duly to observe or perform in any material respect any other covenants covenant or agreements obligation of the Sub-Servicer set forth contained in this Agreement or any other Transaction Document to transaction document which it is a party as Servicer that continues (i) materially and adversely affects the rights of the Purchaser and (ii) remains unremedied (if susceptible to remedy) for a period of 30 thirty days (30) days after the first to occur of (ix) the date on which written notice of such failure requiring the same to be remedied shall have has been given to the Servicer received by the AgentSub-Servicer; provided, however, if Sub-Servicer begins to cure any Lender or such failure within the Borrower time period specified in the previous clause and diligently continues to cure such failure, such time period will be extended for as long as is reasonably necessary to cure such failure;
(ii) A failure by the date on which the Sub-Servicer becomes aware thereof;
(c) an Insolvency Event shall occur with respect to deliver to the Purchaser any required payment of any amount due to the Purchaser and such failure remains unremedied for a period of five (5) business days after (x) written notice thereof has been received by the Sub-Servicer or (y) discovery of such failure by an officer of the Sub-Servicer;
(diii) A failure by the Sub-Servicer shall fail to (a) abide in any material respect to service the Transferred Loans in accordance with the Credit and Collection Policy, and (b) cure such failure or repurchase the adversely affected Receivables as set forth herein;
(eiv) The entry of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, receiver or liquidator for the Sub-Servicer agrees to in any insolvency, readjustment of debt, marshalling of assets and liabilities or otherwise permits similar proceedings, or for the winding up or liquidation of its respective affairs, and the continuance of any amendment, modification, change, supplement such decree or rescission order unstayed and in effect for a period of or to the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender without the prior written consent of the Agent and each Lendersixty (60) consecutive days;
(fv) The commencement of a voluntary case by the Sub-Servicer under any Change applicable federal or state bankruptcy, insolvency or other similar law now or hereafter in Control effect, or by the consent by the Sub-Servicer to the entry of an order for relief in an involuntary case under any such law, or the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator, or similar official of the Servicer is made without the prior written consent of the AgentSub-Servicer;
(gvi) as of The representations and warranties set forth in Section 5.1 and Section 7.1 shall at any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;
(i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to time not be made or given, as the case may be, under the terms of this Agreement;
(k) any representation, warranty or certification made by the Servicer in this Agreement or true and correct in any certificate delivered pursuant material respect except to this Agreement shall prove to have been incorrect when made, and the extent such incorrect representation, warranty or certification can reasonably be expected to would not have a material adverse effect on (i) the collection and payment of a Receivable or (ii) Purchaser’s interests in such Receivable;
(vii) The Net Worth of any party heretothe DT Entities On A Consolidated Basis shall be less than $325,000,000, plus 55% of positive net income earned after December 31, 2008; or
(viii) The occurrence and continuance of a Trigger Event; Then, and such incorrect representation, warranty or certification, if capable of being remedied, shall continue for 30 days without being remedied or cured after in each and every case upon the earlier occurrence of (i) receipt by the a Servicer of written notice with respect thereto Termination Event (other that a Trigger Event), (A) that arises from the Agent failure of the Sub-Servicer to perform its duties or obligations hereunder, the Trustee Purchaser shall take all reasonable steps available to remedy such failure; and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certification;
(lB) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer (individually or in the aggregate);
(m) any default by the Servicer in the making of any payment required to be made with respect to any material recourse debt or other obligation to which it is a party and such default is not cured within the relevant cure period or any such recourse debt or other obligation shall be declared to be due and payable or required to be prepaid (other than by scheduled payment) prior to its maturity; or
(n) any two of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ shall cease to be employed by Kohlberg Capital in the capacity of executive officers thereof unless within 120 days of the cessation of such employment, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably satisfactory to the Agent; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied at the expiration of any applicable cure period, the Agent, by written notice to the Servicer, the Trustee and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.26, Purchaser may terminate all of the rights and obligations of the Sub-Servicer under this Agreement upon at least thirty (30) days prior written notice to the Sub-Servicer, or (ii) a Trigger Event, the Purchaser may terminate all of the rights and obligations of the Sub-Servicer under this Agreement solely with respect to all Trigger Test Pools upon at least thirty (30) days prior written notice to the Sub-Servicer. The Sub-Servicer shall be entitled to its Servicing Fee (or the applicable portion thereof) prior to the effective date of its termination. Subject to Section 9.1, on the date specified in such written notice, all authority and power of the Sub-Servicer under this Agreement with respect to the applicable Tranches shall, without further action, pass to and be vested in (i) the Master Servicer; or (ii) such successor Sub-Servicer as may be appointed under Section 8.2; provided, however, that the successor Sub-Servicer shall have no liability with respect to any obligation which was required to be performed by the predecessor Sub-Servicer prior to the date the successor Sub-Servicer becomes the Sub-Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Sub-Servicer as Sub-Servicer; and, without limitation, the Purchaser is hereby authorized and empowered to execute and deliver, on behalf of the predecessor Sub-Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of the Receivables and related documents, or otherwise. The predecessor Sub-Servicer shall cooperate with the successor Sub-Servicer, the Purchaser and the Custodian in effecting the termination of the responsibilities and rights of the predecessor Sub-Servicer under this Agreement, including the transfer to the successor Sub-Servicer for administration by it of all cash amounts that shall at the time be held or should have been held by the predecessor Sub-Servicer for deposit, or shall thereafter be received with respect to a Receivable and the delivery to the successor Sub-Servicer of all files and records concerning the Receivables and a computer tape in readable form containing all information necessary to enable the successor Sub-Servicer to service the Receivables and the other Purchaser Property. All reasonable costs and expenses (including attorneys’ fees and disbursements) incurred by the Purchaser, the Custodian, or the successor Sub-Servicer in connection with transferring the Sub-Servicer Files to the successor Sub-Servicer and amending this Agreement to reflect such succession as Sub-Servicer pursuant to this Section 8.1(b) shall be paid by the predecessor Sub-Servicer upon presentation of reasonable documentation of such costs and expenses. In addition, any successor Sub-Servicer shall be entitled to payment from the immediate predecessor Sub-Servicer for reasonable transition expenses incurred in connection with acting as successor Sub-Servicer. The Borrower predecessor Sub-Servicer shall pay all grant the Purchaser and the successor Sub-Servicer reasonable set-up and conversion costs associated with the transfer of servicing rights access to the Successor predecessor Sub- Servicer’s premises and at any location at which payments on the Receivables are received at the predecessor Sub-Servicer’s expense. If requested by the Purchaser, the Master Servicer or the successor Sub-Servicer, as applicable, shall terminate any arrangements relating to (A) the Collection Account; or (B) the Post-Office Boxes, and give notices thereunder or take other actions with respect thereto, and direct the Obligors to make all payments under the Receivables directly to the successor Sub-Servicer at the predecessor Sub-Servicer’s expense (in which event the successor Sub-Servicer shall process such payments directly, or through a lock-box account with a lock-box bank at the direction of the Purchaser).
Appears in 2 contracts
Sources: Sale and Servicing Agreement, Sale and Servicing Agreement (DriveTime Automotive, Inc.)
Servicer Termination Events. If The occurrence and continuance of any one of the following events (shall constitute a “Servicer Termination Event”) shall occur and be continuing on any date” hereunder:
(a) any failure by the Servicer to make any payment, transfer transfer, or deposit or to give instructions or notice to the Borrower, the Agent or any Lender as required by this Agreement on or before the date such paymentit as required by any Basic Document, transferto which it is a party, deposit, instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement and such which failure is not cured or waived remedied within three two Business Days following the occurrence thereofDays;
(b) any failure on the part of by the Servicer duly to observe or perform in any material respect any other covenants or agreements of deliver the Servicer set forth in this Agreement or any other Transaction Document to which it is a party as Servicer that continues unremedied (if susceptible to remedy) for a period of 30 days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer Monthly Report by the AgentReporting Date, any Lender or the Borrower and (ii) the date on which the Servicer becomes aware thereoffailure is not remedied within two Business Days;
(c) an Insolvency Event shall occur with respect to the Servicer or any Subsidiary of the Servicer;
(d) any failure by the Servicer shall fail duly to observe or perform in any material respect any other covenant or agreement of the Servicer set forth in this Agreement or the other Basic Documents to service which the Transferred Loans in accordance with Servicer is a party, which such failure remains unremedied for 30 days after the Credit and Collection Policyearlier of knowledge thereof by the Servicer or after the date on which written notice of such failure shall have been given to the Servicer;
(e) the Servicer agrees to or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender without the prior written consent of the Agent and each Lender;
(f) any Change in Control of the Servicer is made without the prior written consent of the Agent;
(g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;
(i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement;
(k) any representation, warranty warranty, or certification made by the Servicer in this Agreement any Basic Document to which it is a party or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certification, if capable of being remedied, shall continue for 30 days without being remedied or cured after the earlier of (i) receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certification;
(l) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer (individually or in the aggregate);
(m) any default by the Servicer in the making of any payment required to be made with respect to any material recourse debt or other obligation Basic Document to which it is a party shall prove to have been false or otherwise incorrect in any respect when made, deemed made, or delivered, which such incorrect representation, warranty, or certification materially and adversely affects the rights or interests of the Secured Parties and, if able to be cured, shall not have been cured for 30 days after the earlier of the date on which the Servicer first has knowledge thereof or the date on which written notice of such failure shall have been given to the Servicer;
(f) with respect to the initial Servicer only, either Lendbuzz Funding or a Subsidiary of Lendbuzz Funding shall default under any Indebtedness having a principal amount of $5,000,000 or greater, and (i) such default continues after the applicable grace period, if any, specified in the agreements or instruments relating to such Indebtedness, (ii) such default has not been waived by the required lenders, creditors, or similarly denominated parties under the agreements or instruments relating to such Indebtedness and in the manner specified in such agreements or instruments, and (iii) as a consequence of such default, either the required lenders, creditors, or similarly denominated parties have accelerated the maturity of such Indebtedness, or the acceleration of the maturity of such Indebtedness has occurred automatically, in all cases as specified in the agreements or instruments relating to such Indebtedness and in all cases the result of which acceleration (regardless of how it is denominated in such agreements or instruments) is to require the immediate repayment of principal on such Indebtedness;
(g) any material provision of any Basic Document to which the Servicer is a party shall in whole or in part, cease to be in full force and effect or cease to be the legally valid, binding and enforceable obligation of the Servicer;
(h) (i) one or more final nonappealable judgments shall be entered against the Servicer by one or more courts of competent jurisdiction assessing monetary damages, individually or in the aggregate over any calendar year, in excess of $5,000,000; (ii) one or more monetary settlements shall be entered into by the Servicer with any Person, individually or in the aggregate over any calendar year, in excess of $5,000,000; (iii) the IRS shall file notice of a Lien pursuant to Section 6323 of the Code with regard to any assets of the Servicer and such default is Lien shall not cured have been released within 30 days; or (iv) the relevant cure period or Pension Benefit Guaranty Corporation shall file notice of a Lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Servicer and such recourse debt or other obligation Lien shall be declared to be due and payable or required to be prepaid (other than by scheduled payment) prior to its maturity; ornot have been released within 30 days;
(ni) any two Change in Control shall occur with respect to Lendbuzz Funding without the prior Consent of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇the Administrative Agent (acting at the direction of the Required Lenders);
(j) an Event of Default shall have occurred and is continuing and shall not have been waived;
(k) with respect to the initial Servicer, ▇▇▇▇ ▇▇▇▇▇▇▇ a Material Adverse Change with respect to Lendbuzz Funding shall have occurred and R. ▇▇▇ ▇▇▇▇▇▇▇ is continuing and shall not have been waived; and
(l) the Performance Guaranty shall cease to be employed by Kohlberg Capital in full force and effect (other than in accordance with its terms) or the capacity Performance Guarantor shall assert that it is not bound by, or otherwise seek to terminate or disaffirm its obligations under, the Performance Guaranty, or shall otherwise claim that the Performance Guaranty is in any way invalid or unenforceable. Upon the occurrence of executive officers thereof unless within 120 days any of the cessation of such employmentforegoing, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably satisfactory to the Agent; then notwithstanding anything herein to the contrary, the Termination Date shall occur and, so long as any such Servicer Termination Events Event shall not have been remedied at the expiration of within any applicable cure periodperiod or waived in writing by the Required Lenders, the Agent, following shall immediately occur without further action: (i) the Revolving Period shall terminate and no further Loans will be made; (ii) the Administrative Agent (acting at the direction of or with the consent of the Required Lenders) by written notice to the Servicer (with a copy to each Agent, Lender, Hedge Counterparty, the Backup Servicer, the Trustee and the Backup Servicer Collateral Custodian) (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.26, may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. The Borrower shall pay all reasonable set-up ; (iii) the Administrative Agent may direct the Servicer to direct Collections to an account other than the Remittance Account or the Collection Account; and conversion costs associated with (iv) the transfer Administrative Agent may terminate the Collateral Custodian (if the Collateral Custodian is Lendbuzz Funding or an Affiliate of servicing rights Lendbuzz Funding) and cause the Collateral Custodian to deliver, or cause to be delivered, the Receivable Files and the related accounts and records maintained by the Collateral Custodian to the Successor ServicerAdministrative Agent, or its agent or designee, at such place as the Administrative Agent may reasonably designate.
Appears in 2 contracts
Sources: Loan Agreement (Lendbuzz Inc.), Loan Agreement (Lendbuzz Inc.)
Servicer Termination Events. (a) If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing on any dateday:
(ai) any failure by the Servicer to make any payment, transfer or deposit or as required by this Agreement and such failure shall continue for two (2) Business Days;
(ii) any failure by the Servicer to give instructions or notice to the Borrower, any Managing Agent and/or the Administrative Agent or any Lender as required by this Agreement or to deliver any Required Reports hereunder on or before the date occurring two Business Days after the date such paymentinstructions, transfer, deposit, instruction notice or notice report is required to be made or given, as the case may be, under the terms of this Agreement and such failure is not cured or waived within three Business Days following the occurrence thereofAgreement;
(biii) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any other Transaction Document to which it is a party as Servicer that continues unremedied (if susceptible to remedy) for a period of 30 fifteen (15) days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Lender Managing Agent or the Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof;
(c) an Insolvency Event shall occur with respect to the Servicer;
(d) the Servicer shall fail in any material respect to service the Transferred Loans in accordance with the Credit and Collection Policy;
(e) the Servicer agrees to or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender without the prior written consent of the Agent and each Lender;
(f) any Change in Control of the Servicer is made without the prior written consent of the Agent;
(g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;
(i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement;
(kiv) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been false or incorrect in any material respect when made, made and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certificationfailure, if capable of being remediedsusceptible to a cure, shall continue unremedied for 30 a period of fifteen (15) days without being remedied or cured after the earlier first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Managing Agent or the Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof;
(v) the Servicer shall fail to service the Transferred Loans in accordance with the Credit and Collection Policy;
(vi) an Insolvency Event shall occur with respect to the Servicer;
(vii) the Servicer agrees to materially alter the Credit and Collection Policy without the prior written consent of the Required Lenders;
(viii) any financial or asset information reasonably requested by the Administrative Agent or any Managing Agent as provided herein is not provided as requested within five (5) Business Days (or such longer period as the Administrative Agent or such Managing Agent may consent to) of the receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certificationrequest;
(lix) the rendering against the Servicer of one a final judgment, decree or more final judgments, decrees or orders order for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer U.S. $5,000,000 (individually or in the aggregate)) and the continuance of such judgment, decree or order unsatisfied and in effect for any period of 30 consecutive days without a stay of execution;
(mx) any default by the Servicer in failure of the making of Performance Guarantor to make any payment required to be made due with respect to any material aggregate recourse debt or other obligation to which it is a party and such default is not cured within obligations with an aggregate principal amount exceeding U.S. $1,000,000 or the relevant cure period occurrence of any event or any condition that would permit acceleration of such recourse debt or other obligation shall be declared to be due and payable obligations if such event or required to be prepaid (other than by scheduled payment) prior to its maturity; orcondition has not been waived;
(nxi) any two Guarantor Event of Default shall occur;
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or a material adverse change occurs with regard to the collectibility of the Transferred Loans, taken as a whole;
(xiii) any Change-in-Control of the Servicer is made without the prior written consent of the Borrower and the Administrative Agent;
(xiv) the Performance Guarantor shall fail to maintain a minimum Net Worth equal to the sum of (i) of $205,000,000 plus (ii) 50% of any equity and Subordinated Debt issued by the Performance Guarantor after the Effective Date minus (iii) 50% of any equity and Subordinated Debt retired or redeemed by the Performance Guarantor after the Effective Date; provided that, in no event shall the minimum Net Worth be less than $205,000,000;
(xv) the Performance Guarantor shall fail to satisfy the RIC/BDC Requirements;
(xvi) the Performance Guarantor shall fail to maintain “asset coverage” (as defined in and determined pursuant to Section 18 of the 1940 Act, as modified by Section 61 of the ▇▇▇▇ ▇▇▇) of at least 150% (or such percentage as may be set forth in Section 18 of the 1940 Act, as modified by ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇ ▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ ); provided, that for purposes of testing compliance with this Section 7.18(a)(xvi) the impact of the election of ASC 825 or similar accounting guideline with respect to determining the fair value of the debt of the Performance Guarantor on a consolidated basis shall cease be excluded (for avoidance of doubt, the intent of this language is to cause the debt of the Performance Guarantor to be employed by Kohlberg Capital valued at par value rather than fair value)); or
(xvii) the Performance Guarantor shall pay any cash dividends; provided that the Performance Guarantor shall be permitted to pay cash dividends if the Servicer shall have caused the Performance Guarantor to have delivered a certificate to the Administrative Agent, substantially in the capacity form of executive officers thereof unless within 120 days Exhibit G hereto, at least 10 Business Days prior to the making of any such cash dividend to the effect that:
(A) the amount of the cessation declared dividend has been determined in good faith by the Board of such employmentDirectors of the Performance Guarantor on the basis of the most current financial projections of the Performance Guarantor then available for the Related Period (as defined in Exhibit G hereof);
(B) the amount of the declared dividend does not exceed the sum of (i) the net investment income and the net capital gain projected to be realized by the Performance Guarantor for the Related Period based on the financial projections referred to in clause (A) above, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably satisfactory and (ii) the amounts deemed by the Performance Guarantor to be considered as having been paid during the prior year in accordance with Section 855(a) of the Code (together clauses (i) and (ii) comprising the “Projected Available Amount”); and
(C) to the Agentextent the declared dividend referred to in clause (B) above exceeds the sum of (i) the net investment income and the net capital gain actually realized by the Performance Guarantor for the Related Period, plus (ii) the amounts deemed by Performance Guarantor to be considered as having been paid during the prior year in accordance with Section 855(a) of the Code (the “Excess Payment”); then the proposed dividend to be declared by the Performance Guarantor for the immediately ensuing Related Period shall be reduced by any positive amount resulting from the following calculation: (x) the ensuing Related Period’s proposed declared dividend plus the Excess Payment minus (y) the ensuing Related Period’s Projected Available Amount. then, notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied at the expiration of any applicable cure period, the AgentAdministrative Agent may, or at the direction of the Required Lenders shall, by written notice to the Servicer, the Trustee Servicer and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.267.19, either (i) terminate all of the rights and obligations of the Servicer as Servicer under this AgreementAgreement or (ii) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and simultaneously reappoint the Servicer for a period not to exceed one month (subject to renewal at the sole discretion of the Administrative Agent, acting at the direction of the Required Lenders), at the expiration of which appointment the Servicer’s rights and obligations hereunder shall automatically terminate without further action on the part of any party hereto. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
Appears in 2 contracts
Sources: Fifth Amended and Restated Credit Agreement (Gladstone Capital Corp), Fifth Amended and Restated Credit Agreement (Gladstone Capital Corp)
Servicer Termination Events. If any one For purposes of this Agreement, each of the following events (shall constitute a “"Servicer Termination Event”) shall occur and be continuing on any date":
(a) any failure by the Servicer to make deposit into any payment, transfer Local Collection Account or deposit the Collection Account any proceeds or to give instructions or notice to the Borrower, the Agent or any Lender as required by this Agreement on or before the date such payment, transfer, deposit, instruction or notice is payment required to be made or given, as the case may be, so delivered under the terms of this Agreement and that continues unremedied for a period of two Business Days (one Business Day with respect to payments of Purchase Amounts) after written notice is received by the Servicer or after discovery of such failure is not cured or waived within three Business Days following by a Responsible Officer of the occurrence thereofServicer;
(b) failure by the Servicer to deliver to the Owner Trustee, the Indenture Trustee, the Seller and (so long as the Security Insurer is the Controlling Party) the Security Insurer the Servicer's Certificate by the applicable Determination Date, or to observe any covenant or agreement set forth in Section 4.06;
(c) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement Agreement, which failure (i) materially and adversely affects the rights of the Securityholders (determined without regard to the availability of funds under the Policies) or any other Transaction Document to which it of the Security Insurer (unless the Security Insurer is a party as Servicer that no longer the Controlling Party) and (ii) continues unremedied (if susceptible to remedy) for a period of 30 days after knowledge thereof by the first to occur of (i) Servicer or after the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by any of the AgentOwner Trustee, any Lender the Indenture Trustee or the Borrower Security Insurer (or, if a Security Insurer Default shall have occurred and (ii) be continuing, Noteholders evidencing not less than 25% of the date on which Outstanding Amounts of the Servicer becomes aware thereof;
(c) an Insolvency Event shall occur with respect to the ServicerNotes);
(d) the Servicer shall fail in any material occurrence of an Insolvency Event with respect to service the Transferred Loans in accordance with Servicer or, so long as First Merchants is the Credit and Collection PolicyServicer, the Seller;
(e) so long as the Servicer agrees to or otherwise permits Security Insurer is the Controlling Party, any amendment, modification, change, supplement or rescission of or to failure by the Credit and Collection Policy, in whole or in part, that could reasonably be expected Security Insurer to have delivered a material adverse effect upon the Loans or Servicer Extension Notice pursuant to be materially adverse to the interests of the Lender without the prior written consent of the Agent and each LenderSection 4.14;
(f) any Change in Control so long as the Security Insurer is the Controlling Party, an Insurance Agreement Event of the Servicer is made without the prior written consent of the Agent;Default shall have occurred and be continuing; or
(g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status is terminated as a business development company or as a registered investment company under the 1940 Act;
(i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement;
(k) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certification, if capable of being remedied, shall continue for 30 days without being remedied or cured after the earlier of (i) receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certification;
(l) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer (individually or in the aggregate);
(m) any default by the Servicer in the making of any payment required to be made servicer with respect to any material recourse debt other trust that has issued one or other obligation more classes of asset backed securities with respect to which it is the Security Insurer has issued a party and such default is not cured within the relevant cure period or any such recourse debt or other obligation shall be declared to be due and payable or required to be prepaid (other than by scheduled payment) prior to its maturity; or
(n) any two of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ shall cease to be employed by Kohlberg Capital in the capacity of executive officers thereof unless within 120 days of the cessation of such employment, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably satisfactory to the Agent; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied at the expiration of any applicable cure period, the Agent, by written notice to the Servicer, the Trustee and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.26, terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicerfinancial insurance guaranty policy.
Appears in 2 contracts
Sources: Sale and Servicing Agreement (First Merchants Acceptance Corp), Sale and Servicing Agreement (First Merchants Acceptance Corp)
Servicer Termination Events. (a) If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing on any dateday:
(ai) any failure by the Servicer to make any payment, transfer or deposit or as required by this Agreement and such failure shall continue for two (2) Business Days;
(ii) any failure by the Servicer to give instructions or notice to the Borrower, any Managing Agent and/or the Administrative Agent or any Lender as required by this Agreement or to deliver any Required Reports hereunder on or before the date occurring two Business Days after the date such paymentinstructions, transfer, deposit, instruction notice or notice report is required to be made or given, as the case may be, under the terms of this Agreement and such failure is not cured or waived within three Business Days following the occurrence thereofAgreement;
(biii) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any other Transaction Document to which it is a party as Servicer that continues unremedied (if susceptible to remedy) for a period of 30 fifteen (15) days after the first to occur of (A) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Managing Agent or the Borrower and (B) the date on which the Servicer becomes or reasonably should have become aware thereof;
(iv) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been false or incorrect in any material respect when made and such failure, if susceptible to a cure, shall continue unremedied for a period of fifteen (15) days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Lender Managing Agent or the Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof;
(c) an Insolvency Event shall occur with respect to the Servicer;
(dv) the Servicer shall fail in any material respect to service the Transferred Loans in accordance with the Credit and Collection Policy;
(evi) an Insolvency Event shall occur with respect to the Servicer;
(vii) the Servicer agrees to or otherwise permits any amendment, modification, change, supplement or rescission of or to materially alter the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender Policy without the prior written consent of the Agent and each LenderRequired Lenders;
(fviii) any financial or asset information reasonably requested by the Administrative Agent or any Managing Agent as provided herein is not provided as requested within five (5) Business Days (or such longer period as the Administrative Agent or such Managing Agent may consent to) of the receipt by the Servicer of such request;
(ix) the rendering against the Servicer of a final judgment, decree or order for the payment of money in excess of U.S. $5,000,000 (individually or in the aggregate) and the continuance of such judgment, decree or order unsatisfied and in effect for any period of 30 consecutive days without a stay of execution;
(x) the failure of the Performance Guarantor to make any payment due with respect to aggregate recourse debt or other obligations with an aggregate principal amount exceeding U.S. $1,000,000 or the occurrence of any event or condition that would permit acceleration of such recourse debt or other obligations if such event or condition has not been waived;
(xi) any Guarantor Event of Default shall occur;
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or a material adverse change occurs with regard to the collectibility of the Transferred Loans, taken as a whole;
(xiii) any Change-in-Control of the Servicer is made without the prior written consent of the Borrower and the Administrative Agent;
(gxiv) as of any date after the date of the Initial Funding, the Servicer fails Performance Guarantor shall fail to maintain a minimum Net Worth equal to the sum of at least (i) $200,000,000 155,000,000 plus seventy-five (75%ii) percent 50% of any new equity and Subordinated Debt issued by the Performance Guarantor after December 11, 2006the Effective Date;
(hxv) the Performance Guarantor shall fail to satisfy the RIC/BDC Requirements; or
(xvi) the Performance Guarantor shall pay any cash dividends; provided that the Performance Guarantor shall be permitted to pay cash dividends if the Servicer shall fail have caused the Performance Guarantor to maintain its status as have delivered a business development company or as a registered investment company under certificate to the 1940 Act;
Administrative Agent, substantially in the form of Exhibit G hereto, at least 10 Business Days prior to the making of any such cash dividend to the effect that (i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure amount of the declared dividend has been determined in good faith by the Servicer to deliver any Required Reports hereunder Board of Directors of the Performance Guarantor on or before the date occurring five Business Days after basis of the date such report is required to be made or given, as most current financial information of the case may be, under Performance Guarantor then available for the terms related period; (ii) the amount of this Agreement;
(k) any representation, warranty or certification made the declared dividend does not exceed the net investment income and the net capital gain realized by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when madePerformance Guarantor for the related period, and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect based on the interests of any party hereto, and such incorrect representation, warranty or certification, if capable of being remedied, shall continue for 30 days without being remedied or cured after the earlier of financial information referred to in clause (i) receipt above; and (iii) to the extent the declared dividend does not equal the net investment income and the net capital gain realized by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certification;
(l) the rendering against the Servicer of one or more final judgments, decrees or orders Performance Guarantor for the payment of money in excess of 10% of related period, the Tangible Net Worth of the Servicer (individually or in the aggregate);
(m) any default proposed dividend to be declared by the Servicer in Performance Guarantor for the making of any payment required to immediately ensuing period shall be made with respect to any material recourse debt or other obligation to which it is a party either (x) reduced by the amount such dividend for the immediately preceding period exceeded the net investment income and such default is not cured within the relevant cure net capital gain realized by the Performance Guarantor for the immediately preceding period or any (y) increased by the amount such recourse debt dividend or other obligation shall be declared to be due distribution for the immediately preceding period was less than the net investment income and payable or required to be prepaid (other than the net capital gains realized by scheduled payment) prior to its maturitythe Performance Guarantor for the immediately preceding period; or
(n) any two of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇then, ▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ shall cease to be employed by Kohlberg Capital in the capacity of executive officers thereof unless within 120 days of the cessation of such employment, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably satisfactory to the Agent; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied at the expiration of any applicable cure period, the AgentAdministrative Agent may, or at the direction of the Required Lenders shall, by written notice to the Servicer, the Trustee Servicer and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.267.19, either (i) terminate all of the rights and obligations of the Servicer as Servicer under this AgreementAgreement or (ii) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and simultaneously reappoint the Servicer for a period not to exceed one month (subject to renewal at the sole discretion of the Administrative Agent, acting at the direction of the Required Lenders), at the expiration of which appointment the Servicer’s rights and obligations hereunder shall automatically terminate without further action on the part of any party hereto. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
Appears in 1 contract
Sources: Credit Agreement (Gladstone Investment Corporation\de)
Servicer Termination Events. (a) If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing on any dateday:
(ai) any failure by the Servicer to make any payment, transfer or deposit or as required by this Agreement and such failure shall continue for two (2) Business Days;
(ii) any failure by the Servicer to give instructions or notice to the Borrower, any Managing Agent and/or the Administrative Agent or any Lender as required by this Agreement or to deliver any Required Reports hereunder on or before the date occurring two Business Days after the date such paymentinstructions, transfer, deposit, instruction notice or notice report is required to be made or given, as the case may be, under the terms of this Agreement and such failure is not cured or waived within three Business Days following the occurrence thereofAgreement;
(biii) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any other Transaction Document to which it is a party as Servicer that continues unremedied (if susceptible to remedy) for a period of 30 fifteen (15) days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Lender Managing Agent or the Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof;
(c) an Insolvency Event shall occur with respect to the Servicer;
(d) the Servicer shall fail in any material respect to service the Transferred Loans in accordance with the Credit and Collection Policy;
(e) the Servicer agrees to or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender without the prior written consent of the Agent and each Lender;
(f) any Change in Control of the Servicer is made without the prior written consent of the Agent;
(g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;
(i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement;
(kiv) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been false or incorrect in any material respect when made, made and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certificationfailure, if capable of being remediedsusceptible to a cure, shall continue unremedied for 30 a period of fifteen (15) days without being remedied or cured after the earlier first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Managing Agent or the Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof;
(v) the Servicer shall fail to service the Transferred Loans in accordance with the Credit and Collection Policy;
(vi) an Insolvency Event shall occur with respect to the Servicer;
(vii) the Servicer agrees to materially alter the Credit and Collection Policy without the prior written consent of the Required Lenders;
(viii) any financial or asset information reasonably requested by the Administrative Agent or any Managing Agent as provided herein is not provided as requested within five (5) Business Days (or such longer period as the Administrative Agent or such Managing Agent may consent to) of the receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certificationrequest;
(lix) the rendering against the Servicer of one a final judgment, decree or more final judgments, decrees or orders order for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer U.S. $5,000,000 (individually or in the aggregate)) and the continuance of such judgment, decree or order unsatisfied and in effect for any period of 30 consecutive days without a stay of execution;
(mx) any default by the Servicer in failure of the making of Performance Guarantor to make any payment required to be made due with respect to any material aggregate recourse debt or other obligation to which it is a party and such default is not cured within obligations with an aggregate principal amount exceeding U.S. $1,000,000 or the relevant cure period occurrence of any event or any condition that would permit acceleration of such recourse debt or other obligation shall be declared to be due and payable obligations if such event or required to be prepaid (other than by scheduled payment) prior to its maturity; orcondition has not been waived;
(nxi) any two Guarantor Event of ▇▇▇▇▇▇▇Default shall occur;
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or a material adverse change occurs with regard to the collectibility of the Transferred Loans, taken as a whole;
(xiii) any Change-in-Control of the Servicer is made without the prior written consent of the Borrower and the Administrative Agent;
(xiv) the Performance Guarantor shall fail to maintain a minimum Net Worth equal to the sum of (i) of $190,000,000 plus (ii) 50% of any equity and Subordinated Debt issued by the Performance Guarantor after January 19, 2012;
(xv) the Performance Guarantor shall fail to satisfy the RIC/BDC Requirements;
(xvi) the Performance Guarantor shall fail to maintain “asset coverage” (as defined in and determined pursuant to Section 18 of the ▇▇▇▇ ▇▇▇▇▇▇▇▇, ) with respect to its “senior securities representing indebtedness” (as defined in Section 18 of the ▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ ) of at least 200% (or such higher percentage as may be set forth in Section 18 of the 1940 Act); provided, that for purposes of testing compliance with this Section 7.18(a)(xvi) the impact of the election of ASC 825 or similar accounting guideline with respect to determining the fair value of the debt of the Performance Guarantor on a consolidated basis shall cease be excluded (for avoidance of doubt, the intent of this language is to cause the debt of the Performance Guarantor to be employed by Kohlberg Capital valued at par value rather than fair value)); or
(xvii) the Performance Guarantor shall pay any cash dividends; provided that the Performance Guarantor shall be permitted to pay cash dividends if the Servicer shall have caused the Performance Guarantor to have delivered a certificate to the Administrative Agent, substantially in the capacity form of executive officers thereof unless within 120 days Exhibit G hereto, at least 10 Business Days prior to the making of any such cash dividend to the effect that (i) the amount of the cessation declared dividend has been determined in good faith by the Board of such employmentDirectors of the Performance Guarantor on the basis of the most current financial information of the Performance Guarantor then available for the related period; (ii) the amount of the declared dividend does not exceed the net investment income and the net capital gain realized by the Performance Guarantor for the related period, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably satisfactory based on the financial information referred to in clause (i) above; and (iii) to the Agentextent the declared dividend does not equal the net investment income and the net capital gain realized by the Performance Guarantor for the related period, the proposed dividend to be declared by the Performance Guarantor for the immediately ensuing period shall be either (x) reduced by the amount such dividend for the immediately preceding period exceeded the net investment income and the net capital gain realized by the Performance Guarantor for the immediately preceding period or (y) increased by the amount such dividend or distribution for the immediately preceding period was less than the net investment income and the net capital gains realized by the Performance Guarantor for the immediately preceding period; then provided, however, that for purposes of this Section 7.18(xvi), net investment income shall not be reduced by non-cash compensation expenses related to employee loans made prior to the Effective Date for the exercise of employee stock options and calculated as the difference between (a) the outstanding loan balances plus accrued interest and (b) the value of the underlying stock at the determination date; then, notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied at the expiration of any applicable cure period, the AgentAdministrative Agent may, or at the direction of the Required Lenders shall, by written notice to the Servicer, the Trustee Servicer and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.267.19, either (i) terminate all of the rights and obligations of the Servicer as Servicer under this AgreementAgreement or (ii) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and simultaneously reappoint the Servicer for a period not to exceed one month (subject to renewal at the sole discretion of the Administrative Agent, acting at the direction of the Required Lenders), at the expiration of which appointment the Servicer’s rights and obligations hereunder shall automatically terminate without further action on the part of any party hereto. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
Appears in 1 contract
Servicer Termination Events. If any (a) In case one or more of the following events (each a “"Servicer Termination Event”") by the Servicer shall occur and be continuing on any datecontinuing, that is to say:
(ai) (A) the failure by the Servicer to make any required Servicing Advance, to the extent such failure materially and adversely affects the interests of the Noteholders; or (B) any failure by the Servicer to make any paymentremit to Noteholders and Hedge Counterparties, transfer or deposit or to give instructions the Indenture Trustee for the benefit of the Noteholders, or notice to the BorrowerOwner Trustee for the benefit of the Certificateholders, the Agent or any Lender as required by this Agreement on or before the date such payment, transfer, deposit, instruction or notice is payment required to be made or given, as the case may be, under the terms of this Agreement and the Basic Documents which continues unremedied for one Business Day after such failure is not cured or waived within three Business Days following the occurrence thereof;payment was required to be made; or
(bii) any failure on the part of by the Servicer or the Seller duly to observe or perform perform, in any material respect respect, any other covenants covenants, obligations or agreements of the Servicer or the Seller as set forth in this Agreement or any other Transaction Document to the Basic Documents, which it is a party as Servicer that failure continues unremedied (if susceptible to remedy) for a period of 30 days (if such failure can be remedied) after the first earlier to occur of (iA) the date on which written notice of such failure failure, requiring the same to be remedied remedied, shall have been given to the Servicer or the Seller, as the case may be, by the AgentIndenture Trustee or to the Servicer, any Lender or the Borrower Seller, as the case may be, and the Indenture Trustee by any Noteholder, Certificateholder or Hedge Counterparty or (iiB) the date on which a Responsible Officer of the Servicer becomes aware thereof;receives actual knowledge of such failure; or
(ciii) an Insolvency Event a decree or order of a court or agency or supervisory authority having jurisdiction for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall occur with respect to have been entered against the Servicer;Servicer and such decree or order shall have remained in force, undischarged or unstayed for a period of 60 days; or
(div) the Servicer shall fail consent to the appointment of a conservator or receiver or liquidator in any material respect insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to service the Transferred Loans in accordance with Servicer or of or relating to all or substantially all of the Credit and Collection Policy;Servicer's property; or
(ev) the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations; or
(vi) without the prior written consent of the Administrative Agent, which consent shall not be unreasonably withheld, the Servicer agrees to or consents to, or otherwise permits to occur, any amendment, modification, change, supplement or rescission recision of or to the Servicer or the Credit and Collection Policy, in whole or in part, in any manner that could reasonably be expected to have a material adverse effect upon on the Loans or to be materially adverse to SBA Loans; provided that the interests consent of the Lender Administrative Agent shall not be required if any such amendment, modification, change, supplement or recision was mandated by the Servicer's regulators including, but not limited to, the SBA; or
(vii) without the prior written consent of the Agent and each Lender;
(f) any Administrative Agent, a Change in Control of occurs with respect to the Servicer is made without the prior written consent of the Agent;Servicer; or
(gviii) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;an active Loan Guaranty Agreement with the SBA; or
(hix) the Servicer shall fail fails to maintain its status as a business development company provide an estimate of the unrecoverable portion of any SBA Loan that is 180 days or as a registered investment company under greater past due and reserve against that estimated portion of the 1940 Act;
(i) SBA Loan consistent with the Servicer’s Leverage Ratio 's historical recovery rate and/or the Credit and Collection Policy; Notwithstanding the foregoing, a delay in or the failure of performance referred to in Section 9.01(a)(i), (ii) or (ix) for a period of three (3) Business Days, in each case in addition to any grace period specified in such sections, shall exceed 1.0:1.0;
(j) any not constitute a Servicer Termination Event if such delay or failure could not have been prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or public enemy, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightening, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns or floods. The preceding sentence shall not relieve the Servicer from using its best efforts to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under perform its obligations in a timely manner in accordance with the terms of this Agreement;.
(kb) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when madethen, and in each and every such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certification, if capable of being remedied, shall continue for 30 days without being remedied or cured after the earlier of (i) receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certification;
(l) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer (individually or in the aggregate);
(m) any default by the Servicer in the making of any payment required to be made with respect to any material recourse debt or other obligation to which it is a party and such default is not cured within the relevant cure period or any such recourse debt or other obligation shall be declared to be due and payable or required to be prepaid (other than by scheduled payment) prior to its maturity; or
(n) any two of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ shall cease to be employed by Kohlberg Capital in the capacity of executive officers thereof unless within 120 days of the cessation of such employment, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably satisfactory to the Agent; then notwithstanding anything herein to the contrarycase, so long as any such a Servicer Termination Events Event shall not have been remedied at the expiration of any applicable cure periodremedied, the AgentMajority Noteholders, by written notice in writing to the Servicer, the Trustee and the Backup Servicer (a “Servicer Termination Notice”except with respect to (iii), (iv) and (v) for which no notice is required) may, subject in addition to whatever rights such Noteholders may have at law or equity including damages, injunctive relief and specific performance, in each case, with the provisions consent of Section 7.26, the SBA (which may be withheld in its sole discretion) terminate all of the rights and obligations of the Servicer under this Agreement and in and to the SBA Loans and the proceeds thereof, as Servicer. Upon such receipt by the Servicer of a written notice from the Majority Noteholders (accompanied by the consent of the SBA) stating that they or it intend to terminate the Servicer as a result of such Servicer Termination Event, all authority and power of the Servicer under this Agreement, whether with respect to the SBA Loans or otherwise, shall, subject to Section 9.02 and the Multi-Party Agreement, pass to and be vested in the Indenture Trustee and the Indenture Trustee is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of the SBA Loans and related documents. The Borrower shall pay all reasonable set-up and conversion costs associated Servicer agrees to cooperate with the Indenture Trustee in effecting the termination of the Servicer's responsibilities and rights hereunder, including, without limitation, the transfer of servicing rights to the Successor ServicerIndenture Trustee for administration by it of all amounts which shall at the time be credited by the Servicer to each Principal and Interest Account or thereafter received with respect to the SBA Loans. The Indenture Trustee shall provide written notice to the SBA of any Servicer Termination Event of which a Responsible Officer of the Indenture Trustee has knowledge and any actual termination of the Servicer hereunder.
Appears in 1 contract
Sources: Sale and Servicing Agreement (BLC Financial Services Inc)
Servicer Termination Events. If (1) The occurrence of any one or more of the following events (shall be a “Servicer Termination Event”) shall occur and be continuing on any dateservicer termination event” in relation to the Series 2019-1 Ownership Interest:
(a) any failure by the Servicer fails to make any paymentdistribution, transfer or deposit or to give instructions or notice to required in respect of the Borrower, the Agent or any Lender as required by this Agreement on or before the date such payment, transfer, deposit, instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement Series 2019-1 Ownership Interest and such failure is not cured continues for a period of five (5) Business Days, or waived within three the Servicer fails to observe or perform any covenant or agreement contained in the Pooling and Servicing Agreement or this Series 2019-1 Purchase Agreement, if such failure has a material adverse effect on the ability of the Series 2019-1 Co-Owner to satisfy its obligations to holders of the Series 2019-1 Senior Notes or the Series 2019-1 Subordinated Notes and continues unremedied for a period of thirty (30) Business Days following after delivery by the occurrence thereofCustodian or the Issuer Trustee of written notice thereof to the Servicer;
(b) any failure representation or warranty made by the Servicer in the Pooling and Servicing Agreement or this Series 2019-1 Purchase Agreement is found to have been incorrect when made, or any information required thereby or hereby to be given by the Servicer is found to have been incorrect when given, and such incorrect representation, warranty or information has a material adverse effect on the part ability of the Servicer duly Series 2019-1 Co-Owner to observe or perform in any material respect any other covenants or agreements satisfy its obligations to holders of the Servicer set forth in this Agreement Series 2019-1 Senior Notes or any other Transaction Document the Series 2019-1 Subordinated Notes and continues to which it is a party as Servicer that continues be incorrect or unremedied (if susceptible to remedy) for a period of 30 days thirty (30) Business Days after delivery by the first to occur Custodian or the Issuer Trustee of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given thereof to the Servicer by the Agent, any Lender or the Borrower and (ii) the date on which the Servicer becomes aware thereofServicer;
(c) an Insolvency Event shall occur except where the terms of Section 9.5 of the Pooling and Servicing Agreement have been complied with, there is commenced against the Servicer any proceeding or the taking of any step by or against the Servicer for the dissolution, liquidation or winding up of the Servicer or for any relief from the laws of any jurisdiction relating to bankruptcy, insolvency, reorganization, arrangement, compromise or winding up, or for the appointment of one or more of a trustee, receiver, receiver and manager, custodian, liquidator or other person with similar powers with respect to the Servicer, unless such proceeding or step is being contested in good faith by the Servicer;
(d) the Servicer shall fail ceases to carry on a revolving credit card business except in any material the course of carrying out a transaction in respect to service of which the Transferred Loans in accordance with conditions of Section 9.4 or Section 9.5 of the Credit Pooling and Collection Policy;Servicing Agreement are observed and performed; and
(e) if CT Bank is the Servicer agrees and a Standby Servicer and an Independent Investment Advisor have been appointed and have agreed to or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender without the prior written consent of the Agent and each Lender;
(f) any Change in Control of the Servicer is made without the prior written consent of the Agent;
(g) as of any date after the date of the Initial Fundingact under Section 9.2, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventyIndependent Investment Advisor notifies the Series 2019-five (75%) percent of any new equity issued after December 111 Co-Owner, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;Administrator and CT Bank in writing that:
(i) in its reasonable opinion, there has been a material adverse change in the Servicer’s Leverage Ratio shall exceed 1.0:1.0;financial condition or operation of CT Bank that is reasonably likely to result in CT Bank being unable to pay its liabilities as they become due within ninety (90) days of the date on which the Independent Investment Advisor became aware of such material adverse change, and
(jii) any failure as a result of such material adverse change, the Independent Investment Advisor believes that it is in the best interests of the holders of Series 2019-1 Notes that CT Bank be replaced as the Servicer by the Servicer Standby Servicer, and accordingly, the Independent Investment Advisor recommends in writing that CT Bank be so replaced as Servicer; provided, however, that no servicer termination event in respect of the Series 2019-1 Ownership Interest will be considered to deliver any Required Reports hereunder have occurred if, on or before the date fifth (5th) Business Day occurring five Business Days after such recommendation, the date holders of the Series 2019-1 Notes provide the Issuer Trustee with a Noteholder Direction to the effect that such report is required event shall not give rise to be made or given, as the case may be, under the terms of this Agreement;a servicer termination event for these purposes.
(k2) any representation, warranty or certification made A servicer termination event in respect of the Series 2019-1 Ownership Interest may be waived by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certification, if capable of being remedied, shall continue for 30 days without being remedied or cured after the earlier of (i) receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certification;
(l) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer (individually or in the aggregate);
(m) any default by the Servicer in the making of any payment required to be made with respect to any material recourse debt or other obligation to which it is a party and such default is not cured within the relevant cure period or any such recourse debt or other obligation shall be declared to be due and payable or required to be prepaid (other than by scheduled payment) prior to its maturity; or
(n) any two of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ shall cease to be employed by Kohlberg Capital in the capacity of executive officers thereof unless within 120 days of the cessation of such employment, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably satisfactory to the Agent; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied at the expiration of any applicable cure period, the Agent, by written notice to the Servicer, the Trustee and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.26, terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. The Borrower shall pay all reasonable setSeries 2019-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer1 Co-Owner.
Appears in 1 contract
Sources: Series Purchase Agreement
Servicer Termination Events. (a) If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing on any dateoccur:
(ai) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Borrower, the Agent or any Lender as required by this Agreement on or before the date such payment, transfer, deposit, instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement any other Transaction Document and such failure is not cured or waived within shall continue for more than three (3) Business Days following Days; or
(ii) the occurrence thereof;of an Event of Default; or
(biii) except as otherwise provided in this Section 7.18, any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any other Transaction Document to which it is a party as Servicer that continues unremedied (if susceptible to remedy) for a period of 30 thirty (30) days (to the extent such failure is capable of being remedied) after the first to occur of (iA) the date on which written notice (which may be by email) of such failure requiring the same to be remedied shall have been given to the Servicer by the Agent, Administrative Agent or any Lender or the Borrower and (iiB) the date on which a Responsible Officer of the Servicer becomes aware thereof;; provided, however, that breaches of Sections 7.9(b) through (d), (g) through (i), (l), (n) through (w), 7.11 and 7.21 shall not have any cure period and shall constitute Servicer Termination Events upon the breach of any such covenant or agreement; or
(civ) the occurrence of an Insolvency Event shall occur with respect to the Servicer or any Affiliate of the Servicer;; or
(dv) the Servicer shall fail in or any material respect to service the Transferred Loans in accordance with the Credit and Collection Policy;
(e) the Servicer agrees to or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender without the prior written consent of the Agent and each Lender;
(f) any Change in Control of the Servicer is made without the prior written consent of the Agent;
(g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;
Affiliate thereof (i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement;
(k) any representation, warranty or certification made by the Servicer defaults in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certification, if capable of being remedied, shall continue for 30 days without being remedied or cured after the earlier of (i) receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certification;
(l) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer (individually or in the aggregate);
(m) any default by the Servicer in the making of any payment required to be made with respect to under any agreement for borrowed money in excess of $2,500,000 or any other material recourse debt or other obligation agreement to which it is a party and such default is not cured within the relevant cure period or (ii) fails to perform or observe any other condition or covenant, or any other event shall occur or condition exist, under any agreement or instrument relating to any such recourse debt Indebtedness or any other obligation shall be declared material agreement, if the effect of such failure, event or condition is to cause, or to permit the holder or holders of such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause such Indebtedness to be accelerated and become immediately due and payable or required (without regard to be prepaid (other than by scheduled payment) prior to its maturityany subordination terms with respect thereto); or
(nvi) [reserved]; or
(vii) any representation, warranty or certification made by the Servicer in this Agreement or any other Transaction Document or any amendment or modification hereof or thereof, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any other Transaction Document or any amendment or modification hereof or thereof, shall prove to have been incorrect in any material respect as of the time when the same shall have been made or deemed to have been made and the circumstances or conditions causing such representation, warranty or certification to be incorrect shall not have been remedied, eliminated or otherwise cured (to the extent capable of being remedied, eliminated or otherwise cured) for a period of thirty (30) days after the first to occur of (A) the date on which written notice (which may be by email) of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent or any Lender and (B) the date on which a Responsible Officer of the Servicer becomes aware thereof; or
(viii) any director, general partner, managing member, manager or senior officer of the Servicer is indicted for any felonious criminal offense related to the performance of its obligations under this Agreement or the other Transaction Documents or related to the Servicer’s business; or
(ix) one or more acts (including any failure(s) to act) by the Servicer or any Affiliate thereof occurs that constitutes fraud, willful misconduct or a material violation of Applicable Laws (including securities laws) (as determined in a final, non-appealable adjudication by a court of competent jurisdiction); or
(x) the Servicer’s business activities are suspended or terminated by a Governmental Authority; or
(xi) the rendering of one or more final judgments, decrees or orders by a court or arbitrator of competent jurisdiction for the payment of money in excess individually or in the aggregate of $2,500,000 against the Servicer or any Affiliate of the Servicer (exclusive of judgment amounts fully covered by insurance), and the aforementioned parties shall not have either (x) discharged or provided for the discharge of any such judgment, decree or order in accordance with its terms or (y) perfected a timely appeal of such judgment, decree or order and caused the execution of same to be stayed during the pendency of the appeal, in each case, within thirty (30) days from the date of entry thereof or enforcement proceedings are commenced upon such judgment, decree or order; or
(xii) any two of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ or ▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ shall cease fail to be employed by Kohlberg Capital provide active and material participation in the capacity of executive officers thereof unless within 120 days of the cessation of Servicer’s daily activities, including, but not limited to, general management, underwriting and credit approval process, and credit monitoring activities and such employment, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably Persons are not replaced with other individuals satisfactory to the AgentAdministrative Agent in its sole discretion within 90 days; then notwithstanding anything herein to the contrarythen, so long as and in any such Servicer Termination Events shall not have been remedied event, the Administrative Agent shall, at the expiration request, or may with the consent, of any applicable cure period, the AgentRequired Lenders, by written notice to the Servicer, the Trustee and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.267.19, either (i) terminate all of the rights and obligations of the Servicer as Servicer under this AgreementAgreement or (ii) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and simultaneously reappoint the Servicer for a period not to exceed one month (subject to renewal at the sole discretion of the Administrative Agent, acting at the direction of the Required Lenders), at the expiration of which appointment the Servicer’s rights and obligations hereunder shall automatically terminate without further action on the part of any party hereto. In addition to the foregoing, the Administrative Agent may request the assignment of any agreement for services utilized by the Servicer in servicing the Transferred Loans, and the Servicer shall use commercially reasonable efforts to promptly comply or cause the compliance with such request. The Borrower Servicer shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
Appears in 1 contract
Servicer Termination Events. If any (a) In case one or more of the following events (each a “"Servicer Termination Event”") by the Servicer shall occur and be continuing on any datecontinuing, that is to say:
(ai) any failure by the Servicer to make any paymentremit when due to the Noteholders, transfer or deposit or to give instructions the Indenture Trustee for the benefit of the Noteholders and Hedge Counterparties, or notice to the BorrowerOwner Trustee for the benefit of the Certificateholders, the Agent or any Lender as required by this Agreement on or before the date such payment, transfer, deposit, instruction or notice is payment required to be made or given, as the case may be, under the terms of this Agreement and such the Basic Documents, it being understood that the Servicer shall not be responsible for the failure is not cured of either the Owner Trustee or waived within three Business Days following the occurrence thereof;Indenture Trustee to remit funds that were received by the Owner Trustee or the Indenture Trustee from the Servicer in accordance with the Basic Documents; or
(bii) any failure on the part of by the Servicer duly to observe or perform perform, in any material respect respect, any other covenants covenants, obligations or agreements of the Servicer as set forth in the Basic Documents, or any representation or warranty of the Servicer made in this Agreement or any other Transaction Basic Document or in any certificate or other writing delivered thereto or in connection therewith proves to have been incorrect when made and has a material adverse effect on the rights of the Noteholders, which it is a party as Servicer that failure continues unremedied (if susceptible to remedy) for a period of 30 days (if such failure can be remedied) after the first earlier to occur of (iA) the date on which written notice of such failure failure, requiring the same to be remedied remedied, shall have been given to a Responsible Officer of the Servicer by the AgentIndenture Trustee or to a Responsible Officer of the Servicer, and the Indenture Trustee by any Lender Noteholder, Certificateholder or the Borrower and Hedge Counterparty or (iiB) the date on which a Responsible Officer of the Servicer becomes aware thereof;receives actual knowledge of such failure; or
(ciii) an Insolvency Event a decree or order of a court or agency or supervisory authority having jurisdiction for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall occur with respect to have been entered against the Servicer;Servicer and such decree or order shall have remained in force, undischarged or unstayed for a period of 30 days; or
(div) the Servicer shall fail consent to the appointment of a conservator or receiver or liquidator in any material respect insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to service the Transferred Loans in accordance with Servicer or of or relating to all or substantially all of the Credit and Collection Policy;Servicer's property; or
(ev) the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations; or
(vi) without the prior written consent of the Majority Noteholders, the Servicer agrees to or consents to, or otherwise permits to occur, any amendment, modification, change, supplement or rescission recision of or to the Servicer or the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender without the prior written consent of the Agent and each Lender;
(f) any Change in Control of the Servicer is made without the prior written consent of the Agent;
(g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;
(i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement;
(k) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, and such incorrect representation, warranty or certification can reasonably be expected to manner that would have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certification, if capable of being remedied, shall continue for 30 days without being remedied or cured after the earlier of (i) receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certification;
(l) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer (individually or in the aggregate);
(m) any default by the Servicer in the making of any payment required to be made with respect to any material recourse debt or other obligation to which it is a party and such default is not cured within the relevant cure period or any such recourse debt or other obligation shall be declared to be due and payable or required to be prepaid (other than by scheduled payment) prior to its maturityCommercial Loans; or
(nvii) failure by the Servicer to observe or perform the Credit and Collection Policy regarding the servicing of the Commercial Loans in any two of manner that would have a material adverse effect on the Commercial Loans; or
(viii) either (A) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ceases to be actively involved in the credit decisions of the Servicer (unless waived by the Majority Noteholders, which waiver may be granted or withheld in their sole direction) or (B) any of the following ceases to be actively involved in the management of the Servicer (unless waived by the Majority Noteholders, which waiver will not be unreasonably withheld): ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ shall cease to be employed by Kohlberg Capital in ; or
(ix) the capacity of executive officers thereof unless within 120 days consolidated net worth of the cessation Servicer (inclusive of all committed capital), as measured as of the end of any fiscal quarter of Servicer, shall be less than the greater of (a) $115,000,000 and (b) 15% of the aggregate outstanding principal balance of the commercial loans that are being serviced by Servicer and are owned by Servicer or an Affiliate of Servicer (including MCG Master Trust).
(b) then, and in each and every such employment, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably satisfactory to the Agent; then notwithstanding anything herein to the contrarycase, so long as any such a Servicer Termination Events Event shall not have been remedied at the expiration of any applicable cure periodremedied, the AgentMajority Noteholders, by written notice in writing to the Servicer, the Trustee and the Backup Servicer (a “Servicer Termination Notice”except with respect to (iii), (iv) and (v) for which no notice is required) may, subject in addition to the provisions of Section 7.26whatever rights such Noteholders may have at law or equity including damages, injunctive relief and specific performance, in each case, immediately be withheld in its sole discretion) terminate all of the rights and obligations of the Servicer under this Agreement and in and to the Commercial Loans and the proceeds thereof, as Servicer. Upon such receipt by the Servicer of a written notice from the Majority Noteholders stating that they or it intend to terminate the Servicer as a result of such Servicer Termination Event, all authority and power of the Servicer under this Agreement. The Borrower shall pay , whether with respect to the Commercial Loans or otherwise, shall, subject to Section 9.02, pass to and be vested in the Indenture Trustee and the Indenture Trustee is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and all reasonable set-up documents and conversion costs associated with other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of servicing rights to the Successor ServicerCommercial Loans and related documents.
Appears in 1 contract
Servicer Termination Events. (a) If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing on any dateoccur:
(ai) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Borrower, the Agent or any Lender as required by this Agreement on or before the date such payment, transfer, deposit, instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement any other Transaction Document and such failure is not cured or waived within shall continue for more than three (3) Business Days following Days; or
(ii) the occurrence thereof;of an Event of Default; or
(biii) except as otherwise provided in this Section 7.18, any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any other Transaction Document to which it is a party as Servicer that continues unremedied (if susceptible to remedy) for a period of 30 thirty (30) days (to the extent such failure is capable of being remedied) after the first to occur of (iA) the date on which written notice (which may be by email) of such failure requiring the same to be remedied shall have been given to the Servicer by the Agent, Administrative Agent or any Lender or the Borrower and (iiB) the date on which a Responsible Officer of the Servicer becomes aware thereof;; provided, however, that breaches of Sections 7.9(b) through (d), (g) through (i), (l), (n) through (w), 7.11 and 7.21 shall not have any cure period and shall constitute Servicer Termination Events upon the breach of any such covenant or agreement; or
(civ) the occurrence of an Insolvency Event shall occur with respect to the Servicer or any Affiliate of the Servicer;; or
(dv) the Servicer shall fail in or any material respect to service the Transferred Loans in accordance with the Credit and Collection Policy;
(e) the Servicer agrees to or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender without the prior written consent of the Agent and each Lender;
(f) any Change in Control of the Servicer is made without the prior written consent of the Agent;
(g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;
Affiliate thereof (i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement;
(k) any representation, warranty or certification made by the Servicer defaults in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certification, if capable of being remedied, shall continue for 30 days without being remedied or cured after the earlier of (i) receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certification;
(l) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer (individually or in the aggregate);
(m) any default by the Servicer in the making of any payment required to be made with respect to under any agreement for borrowed money in excess of $2,500,000 or any other material recourse debt or other obligation agreement to which it is a party and such default is not cured within the relevant cure period or (ii) fails to perform or observe any other condition or covenant, or any other event shall occur or condition exist, under any agreement or instrument relating to any such recourse debt Indebtedness or any other obligation shall be declared material agreement, if the effect of such failure, event or condition is to cause, or to permit the holder or holders of such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause such Indebtedness to be accelerated and become immediately due and payable or required (without regard to be prepaid (other than by scheduled payment) prior to its maturityany subordination terms with respect thereto); or
(nvi) [reserved]; or
(vii) any representation, warranty or certification made by the Servicer in this Agreement or any other Transaction Document or any amendment or modification hereof or thereof, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any other Transaction Document or any amendment or modification hereof or thereof, shall prove to have been incorrect in any material respect (without duplication of any materiality qualifier already contained therein) as of the time when the same shall have been made or deemed to have been made and the circumstances or conditions causing such representation, warranty or certification to be incorrect shall not have been remedied, eliminated or otherwise cured (to the extent capable of being remedied, eliminated or otherwise cured) for a period of thirty (30) days after the first to occur of (A) the date on which written notice (which may be by email) of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent or any Lender and (B) the date on which a Responsible Officer of the Servicer becomes aware thereof; or
(viii) any director, general partner, managing member, manager or senior officer of the Servicer is indicted for any felonious criminal offense related to the performance of its obligations under this Agreement or the other Transaction Documents or related to the Servicer’s business; or
(ix) one or more acts (including any failure(s) to act) by the Servicer or any Affiliate thereof occurs that constitutes fraud, willful misconduct or a material violation of Applicable Laws (including securities laws) (as determined in a final, non-appealable adjudication by a court of competent jurisdiction); or
(x) the Servicer’s business activities are suspended or terminated by a Governmental Authority; or
(xi) the rendering of one or more final judgments, decrees or orders by a court or arbitrator of competent jurisdiction for the payment of money in excess individually or in the aggregate of $2,500,000 against the Servicer or any Affiliate of the Servicer (exclusive of judgment amounts fully covered by insurance), and the aforementioned parties shall not have either (x) discharged or provided for the discharge of any such judgment, decree or order in accordance with its terms or (y) perfected a timely appeal of such judgment, decree or order and caused the execution of same to be stayed during the pendency of the appeal, in each case, within thirty (30) days from the date of entry thereof or enforcement proceedings are commenced upon such judgment, decree or order; or
(xii) any two of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ or ▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ shall cease fail to be employed by Kohlberg Capital provide active and material participation in the capacity of executive officers thereof unless within 120 days of the cessation of Servicer’s daily activities, including, but not limited to, general management, underwriting and credit approval process, and credit monitoring activities and such employment, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably Persons are not replaced with other individuals satisfactory to the AgentAdministrative Agent in its sole discretion within 90 days; then notwithstanding anything herein to the contrarythen, so long as and in any such Servicer Termination Events shall not have been remedied event or upon the occurrence and during the continuance of a Rapid Amortization Event (other than pursuant to clauses (e) or (f) of the definition thereof), the Administrative Agent shall, at the expiration request, or may with the consent, of any applicable cure period, the AgentRequired Lenders, by written notice to the Servicer, the Trustee and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.267.19, either (i) terminate all of the rights and obligations of the Servicer as Servicer under this AgreementAgreement or (ii) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and simultaneously reappoint the Servicer for a period not to exceed one month (subject to renewal at the sole discretion of the Administrative Agent, acting at the direction of the Required Lenders), at the expiration of which appointment the Servicer’s rights and obligations hereunder shall automatically terminate without further action on the part of any party hereto. In addition to the foregoing, the Administrative Agent may request the assignment of any agreement for services utilized by the Servicer in servicing the Transferred Loans, and the Servicer shall use commercially reasonable efforts to promptly comply or cause the compliance with such request. The Borrower Servicer shall pay all reasonable set-up set‑up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
Appears in 1 contract
Servicer Termination Events. (a) If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing on any dateday:
(ai) any failure by the Servicer to make any payment, transfer or deposit or as required by this Agreement and such failure shall continue for two (2) Business Days;
(ii) any failure by the Servicer to give instructions or notice to the Borrower, any Managing Agent and/or the Administrative Agent or any Lender as required by this Agreement or to deliver any Required Reports hereunder on or before the date occurring two (2) Business Days after the date such paymentinstructions, transfer, deposit, instruction notice or notice report is required to be made or given, as the case may be, under the terms of this Agreement and such failure is not cured or waived within three Business Days following the occurrence thereofAgreement;
(biii) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any other Transaction Document to which it is a party as Servicer that continues unremedied (if susceptible to remedy) for a period of 30 fifteen (15) days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Lender Managing Agent or the Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof;
(c) an Insolvency Event shall occur with respect to the Servicer;
(d) the Servicer shall fail in any material respect to service the Transferred Loans in accordance with the Credit and Collection Policy;
(e) the Servicer agrees to or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender without the prior written consent of the Agent and each Lender;
(f) any Change in Control of the Servicer is made without the prior written consent of the Agent;
(g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;
(i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement;
(kiv) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been false or incorrect in any material respect when made, made and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certificationfailure, if capable of being remediedsusceptible to a cure, shall continue unremedied for 30 a period of fifteen (15) days without being remedied or cured after the earlier first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Managing Agent or the Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof;
(v) the Servicer shall fail to service the Transferred Loans in accordance with the Credit and Collection Policy;
(vi) an Insolvency Event shall occur with respect to the Servicer;
(vii) the Servicer agrees to materially alter the Credit and Collection Policy without the prior written consent of the Required Lenders;
(viii) any financial or asset information reasonably requested by the Administrative Agent or any Managing Agent as provided herein is not provided as requested within five (5) Business Days (or such longer period as the Administrative Agent or such Managing Agent may consent to) of the receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certificationrequest;
(lix) the rendering against the Servicer of one a final judgment, decree or more final judgments, decrees or orders order for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer U.S. $5,000,000 (individually or in the aggregate)) and the continuance of such judgment, decree or order unsatisfied and in effect for any period of thirty (30) consecutive days without a stay of execution;
(mx) any default by the Servicer in failure of the making of Performance Guarantor to make any payment required to be made due with respect to any material aggregate recourse debt or other obligation to which it is a party and such default is not cured within obligations with an aggregate principal amount exceeding U.S. $1,000,000 or the relevant cure period occurrence of any event or any condition that would permit acceleration of such recourse debt or other obligation obligations if such event or condition has not been waived;
(xi) any Guarantor Event of Default shall occur;
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or a material adverse change occurs with regard to the collectibility of the Transferred Loans, taken as a whole;
(xiii) any Change-in-Control of the Servicer is made without the prior written consent of the Borrower and the Administrative Agent, other than a Change-in-Control of the Servicer that is a result of transfer to a Permitted Holder;
(xiv) the Performance Guarantor shall fail to maintain a minimum Net Worth equal to the sum of (i) of $325,000,000500,000,000 plus (ii) 50% of any equity and Subordinated Debt issued by the Performance Guarantor after the RestatementExtension Close Date minus (iii) 50% of any equity and Subordinated Debt retired or redeemed by the Performance Guarantor after the RestatementExtension Close Date; provided that, in no event shall the minimum Net Worth be less than $325,000,000500,000,000 ;
(xv) the Performance Guarantor shall fail to satisfy the RIC/BDC Requirements;
(xvi) the Performance Guarantor shall fail to maintain “asset coverage” (as defined in and determined pursuant to Section 18 of the 1940 Act, as modified by Section 61 of the 1940 Act) of at least 150% (or such percentage as may be set forth in Section 18 of the 1940 Act, as modified by Section 61 of the 1940 Act); provided, that for purposes of testing compliance with this Section 7.18(a)(xvi) the impact of the election of ASC 825 or similar accounting guideline with respect to determining the fair value of the debt of the Performance Guarantor on a consolidated basis shall be declared excluded (for avoidance of doubt, the intent of this language is to cause the debt of the Performance Guarantor to be due and payable or required to be prepaid (other valued at par value rather than by scheduled payment) prior to its maturityfair value)); or
(nxvii) the Performance Guarantor shall pay any two cash dividends; provided that the Performance Guarantor shall be permitted to pay cash dividends if the Servicer shall have caused the Performance Guarantor to have delivered a certificate to the Administrative Agent, substantially in the form of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇Exhibit G hereto, ▇▇▇▇ ▇▇▇▇▇▇▇ at least ten (10) Business Days prior to the making of any such cash dividend to the effect that:
(A) the amount of the declared dividend has been determined in good faith by the Board of Directors of the Performance Guarantor on the basis of the most current financial projections of the Performance Guarantor then available for the Related Period (as defined in Exhibit G hereof);
(B) the amount of the declared dividend does not exceed the sum of (i) the net investment income and R. ▇▇▇ ▇▇▇▇▇▇▇ shall cease the net capital gain projected to be employed realized by Kohlberg Capital the Performance Guarantor for the Related Period based on the financial projections referred to in clause (A) above, and (ii) the capacity of executive officers thereof unless within 120 days amounts deemed by the Performance Guarantor to be considered as having been paid during the prior year in accordance with Section 855(a) of the cessation of such employment, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably satisfactory Code (together clauses (i) and (ii) comprising the “Projected Available Amount”); and
(C) to the Agentextent the declared dividend referred to in clause (B) above exceeds the sum of (i) the net investment income and the net capital gain actually realized by the Performance Guarantor for the Related Period, plus (ii) the amounts deemed by Performance Guarantor to be considered as having been paid during the prior year in accordance with Section 855(a) of the Code (the “Excess Payment”); then the proposed dividend to be declared by the Performance Guarantor for the immediately ensuing Related Period shall be reduced by any positive amount resulting from the following calculation: (x) the ensuing Related Period’s proposed declared dividend plus the Excess Payment minus (y) the ensuing Related Period’s Projected Available Amount. then, notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied at the expiration of any applicable cure period, the AgentAdministrative Agent may, or at the direction of the Required Lenders shall, by written notice to the Servicer, the Trustee Servicer and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.267.19, either (i) terminate all of the rights and obligations of the Servicer as Servicer under this AgreementAgreement or (ii) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and simultaneously reappoint the Servicer for a period not to exceed one month (subject to renewal at the sole discretion of the Administrative Agent, acting at the direction of the Required Lenders), at the expiration of which appointment the Servicer’s rights and obligations hereunder shall automatically terminate without further action on the part of any party hereto. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
Appears in 1 contract
Servicer Termination Events. If (a) Servicer’s right to service pursuant to each Servicing Agreement shall terminate upon the occurrence of any one of the following events (each a “Servicer Termination Event”) shall occur and be continuing on any date:):
(ai) An Event of Default;
(ii) This Servicer Notice is deemed unenforceable;
(iii) Servicer materially breaches or fails to comply with (A) the Servicing Agreement and such breach or failure continues uncured or unremedied for a period of thirty (30) calendar days or Servicer fails to diligently pursue a cure or remedy (without regard to any other cure periods) or (B) this Servicer Notice (relating to the deposit or transfer of funds) and such breach or failure by continues uncured or unremedied for a period of two (2) Business Days (without regard to any other cure periods), in each case, after a Responsible Officer of a Seller Party or Servicer first learns of it;
(iv) Servicer is unable to comply with the eligibility requirements, or ceases to be an approved servicer, of, in each case, GNMA, HUD or VA;
(v) Servicer fails to make any paymentrequired servicing advance, transfer to the extent that such failure would be reasonably likely to impair FHA Mortgage Insurance coverage or deposit VA Loan Guaranty Agreement coverage, with respect to the principal portion of any Mortgage Loan or would be reasonably likely to give instructions rise to a liability to HUD, FHA or notice VA, as determined by Buyer in its good faith discretion;
(vi) Servicer fails to make a required deposit to the Borrower, the Agent or any Lender as required by this Agreement on or before the date such payment, transfer, deposit, instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement and such failure Inbound Account (i) which is not cured within one (1) Business Day of Seller Party’s knowledge of such failure, or waived within three Business Days following (ii) to the occurrence thereofextent such failure or failures occur on multiple occasions (regardless of any subsequent cure);
(vii) Servicer provides a notice of its intent to resign as Servicer of the Mortgage Loans and REO Property and a new Servicer reasonably acceptable to Buyer is not promptly appointed;
(viii) Servicer is subject to FHA, HUD or VA fees or penalties which have not been paid or is subject to a set-off by any of FHA, HUD or VA which (A) is reasonably likely to result in a Servicer Material Adverse Effect or (B) failure or failures occur on a persistent and material basis after notice or knowledge thereof (regardless of any subsequent cure); or
(ix) There shall occur a Servicer Material Adverse Effect, in the determination of Buyer.
(b) any failure on Upon the part occurrence of a Servicer Termination Event at the Servicer duly to observe or perform in any material respect any other covenants or agreements Request of the Servicer set forth in this Agreement or any other Transaction Document to which it is a party as Servicer that continues unremedied (if susceptible to remedy) for a period of 30 days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the AgentBuyer, any Lender or the Borrower and (ii) the date on which the Servicer becomes aware thereof;
(c) an Insolvency Event shall occur with respect to the Servicer;
(d) the Servicer shall fail in any material respect transfer the servicing to service the Transferred Loans a successor servicer in accordance with the Credit and Collection Policy;
(e) the Servicer agrees to or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests terms of the Lender without the prior written consent of the Agent and each Lender;
(f) any Change in Control of the Servicer is made without the prior written consent of the Agent;
(g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;
(i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Servicing Agreement;
(k) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certification, if capable of being remedied, shall continue for 30 days without being remedied or cured after the earlier of (i) receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certification;
(l) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer (individually or in the aggregate);
(m) any default by the Servicer in the making of any payment required to be made with respect to any material recourse debt or other obligation to which it is a party and such default is not cured within the relevant cure period or any such recourse debt or other obligation shall be declared to be due and payable or required to be prepaid (other than by scheduled payment) prior to its maturity; or
(n) any two of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ shall cease to be employed by Kohlberg Capital in the capacity of executive officers thereof unless within 120 days of the cessation of such employment, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably satisfactory to the Agent; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied at the expiration of any applicable cure period, the Agent, by written notice to the Servicer, the Trustee and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.26, terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
Appears in 1 contract
Sources: Master Repurchase Agreement (Walter Investment Management Corp)
Servicer Termination Events. (a) If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing on any dateday:
(ai) any failure by the Servicer to make any payment, transfer or deposit or as required by this Agreement and such failure shall continue for two (2) Business Days;
(ii) any failure by the Servicer to give instructions or notice to the Borrower, any Managing Agent and/or the Administrative Agent or any Lender as required by this Agreement or to deliver any Required Reports hereunder on or before the date occurring two Business Days after the date such paymentinstructions, transfer, deposit, instruction notice or notice report is required to be made or given, as the case may be, under the terms of this Agreement and such failure is not cured or waived within three Business Days following the occurrence thereofAgreement;
(biii) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any other Transaction Document to which it is a party as Servicer that continues unremedied (if susceptible to remedy) for a period of 30 fifteen (15) days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Lender Managing Agent or the Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof;
(c) an Insolvency Event shall occur with respect to the Servicer;
(d) the Servicer shall fail in any material respect to service the Transferred Loans in accordance with the Credit and Collection Policy;
(e) the Servicer agrees to or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender without the prior written consent of the Agent and each Lender;
(f) any Change in Control of the Servicer is made without the prior written consent of the Agent;
(g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;
(i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement;
(kiv) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been false or incorrect in any material respect when made, made and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certificationfailure, if capable of being remediedsusceptible to a cure, shall continue unremedied for 30 a period of fifteen (15) days without being remedied or cured after the earlier first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Managing Agent or the Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof;
(v) the Servicer shall fail to service the Transferred Loans in accordance with the Credit and Collection Policy;
(vi) an Insolvency Event shall occur with respect to the Servicer;
(vii) the Servicer agrees to materially alter the Credit and Collection Policy without the prior written consent of the Administrative Agent;
(viii) any financial or asset information reasonably requested by the Administrative Agent or any Managing Agent as provided herein is not provided as requested within five (5) Business Days (or such longer period as the Administrative Agent or such Managing Agent may consent to) of the receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certificationrequest;
(lix) the rendering against the Servicer of one a final judgment, decree or more final judgments, decrees or orders order for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer U.S. $5,000,000 (individually or in the aggregate)) and the continuance of such judgment, decree or order unsatisfied and in effect for any period of 30 consecutive days without a stay of execution;
(mx) any default by the Servicer in failure of the making of Performance Guarantor to make any payment required to be made due with respect to any material aggregate recourse debt or other obligation to which it is a party and such default is not cured within obligations with an aggregate principal amount exceeding U.S. $1,000,000 or the relevant cure period occurrence of any event or any condition that would permit acceleration of such recourse debt or other obligation obligations if such event or condition has not been waived;
(xi) any Guarantor Event of Default shall be declared occur;
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or a material adverse change occurs with regard to be due the collectibility of the Transferred Loans, taken as a whole;
(xiii) any Change-in-Control of the Servicer is made without the prior written consent of the Borrower and payable or required the Administrative Agent;
(xiv) the Performance Guarantor shall fail to be prepaid maintain a minimum Tangible Net Worth equal to the sum of (other than i) of $250,000,000 plus (ii) 75% of any equity issued by scheduled payment) prior to its maturitythe Servicer after the Effective Date; or
(nxv) any two of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇the Performance Guarantor shall fail to satisfy the RIC/BDC Requirements; then, ▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ shall cease to be employed by Kohlberg Capital in the capacity of executive officers thereof unless within 120 days of the cessation of such employment, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably satisfactory to the Agent; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied at the expiration of any applicable cure period, the AgentAdministrative Agent may, or at the direction of the Required Committed Lenders shall, by written notice to the Servicer, the Trustee Servicer and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.267.19, either (i) terminate all of the rights and obligations of the Servicer as Servicer under this AgreementAgreement or (ii) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and simultaneously reappoint the Servicer for a period not to exceed one month (subject to renewal at the sole discretion of the Administrative Agent, acting at the direction of the Required Committed Lenders), at the expiration of which appointment the Servicer’s rights and obligations hereunder shall automatically terminate without further action on the part of any party hereto. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
Appears in 1 contract
Servicer Termination Events. If Subject to the prior written consent of the Security Trustee, the Issuer may, by notice in writing to the Servicer (with a copy to the Security Trustee and the Back-Up Servicer Facilitator), terminate the Servicer's appointment under this Agreement if any one of the following events (each a “Servicer Termination Event”) shall occur occurs and be continuing on any dateis continuing:
(a) the Servicer defaults in the payment on the due date of any payment due and payable by it under this Agreement and such default continues unremedied for a period of 10 Business Days after: COPY
(i) where the failure to pay has arisen other than as a result of a Disruption Event, upon the earlier of the Servicer becoming aware of such default and the receipt by the Servicer to make any payment, transfer of written notice from the Issuer or deposit or to give instructions or notice to (after the Borrower, delivery of an Enforcement Notice) the Agent or any Lender as required by this Agreement on or before the date such payment, transfer, deposit, instruction or notice is required to be made or givenSecurity Trustee, as the case may be, under (with a copy to the terms Back-Up Servicer Facilitator) requiring the same to be remedied; or
(ii) where the failure to pay has arisen as a result of this Agreement and such failure is not cured or waived within three a Disruption Event, the cessation of the Disruption Event or, if earlier, 20 Business Days following the occurrence thereofServicer becoming aware of such default and receipt by the Servicer of written notice from the Issuer or (after the delivery of an Enforcement Notice) the Security Trustee, as the case may be, (with a copy to the Back-Up Servicer Facilitator) requiring the same to be remedied;
(b) the Servicer defaults in the performance or observance of any of its other covenants and obligations under this Agreement, which failure on in the part reasonable opinion of the Issuer (prior to the delivery of an Enforcement Notice) or the opinion of the Security Trustee (after the delivery of an Enforcement Notice) is materially prejudicial to the interests of the Noteholders, and the Servicer does not remedy that failure within 35 Business Days after the earlier of the Servicer duly to observe or perform in any material respect any other covenants or agreements becoming aware of the failure or of receipt by the Servicer set forth in this Agreement of written notice from the Issuer or any other Transaction Document to which it is a party as Servicer that continues unremedied (if susceptible to remedy) for a period of 30 days after the first to occur delivery of (ian Enforcement Notice) the date on which written notice of such failure Security Trustee, as the case may be, (with a copy to the Back-Up Servicer Facilitator) requiring the same Servicer's non-compliance to be remedied shall have been given to the Servicer by the Agent, any Lender or the Borrower and (ii) the date on which the Servicer becomes aware thereofremedied;
(c) an Insolvency Event shall occur with respect occurs in relation to the Servicer;; or
(d) it becomes unlawful in any applicable jurisdiction for the Servicer shall fail in to perform any material respect to service the Transferred Loans in accordance with the Credit and Collection Policy;
(e) of its obligations as contemplated by this Agreement provided that this does not result or arise from compliance by the Servicer agrees with any instruction from the Issuer or the Security Trustee, then the Issuer (subject to or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender without the prior written consent of the Agent and each Lender;
(fSecurity Trustee) may at once or at any Change time thereafter while such default continues by notice in Control of writing to the Servicer is made without (with a copy to the prior written consent of Security Trustee and the Agent;
Back-Up Servicer Facilitator) terminate its appointment as Servicer under this Agreement with effect from a date (g) as of any date after not earlier than the date of the Initial Funding, notice) specified in the Servicer fails notice. In determining whether to maintain a minimum Net Worth provide or withhold consent to the termination of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;
(i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement;
(k) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certification, if capable of being remedied, shall continue for 30 days without being remedied or cured after the earlier of (i) receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representationIssuer, warranty or certification;
(l) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer (individually or in the aggregate);
(m) any default by the Servicer in the making of any payment required Security Trustee shall have regard to factors it deems to be made with respect to any material recourse debt or other obligation to which it is a party and such default is not cured within the relevant cure period or any such recourse debt or other obligation shall be declared to be due and payable or required to be prepaid (other than by scheduled payment) prior to its maturity; or
(n) any two of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ shall cease to be employed by Kohlberg Capital in the capacity of executive officers thereof unless within 120 days of the cessation of such employment, Kohlberg Capital hires reputable experienced replacements including for such officers, reasonably satisfactory to the Agent; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied at the expiration of any applicable cure periodthis purpose, the Agent, by written notice to the Servicer, the Trustee availability of a substitute servicer and the Backup Servicer effect (including any potential regulatory implications) on the Issuer of not having a “Servicer Termination Notice”servicer in place at any time), may, subject to . Upon the provisions of Section 7.26, terminate all of the rights and obligations termination of the Servicer as Servicer servicer under this Agreement. The Borrower , the Issuer shall pay all use its reasonable set-up and conversion costs associated with endeavours to appoint a substitute servicer that satisfies the transfer of servicing rights to the Successor Servicerconditions set forth in Clause 21.2 (Voluntary Resignation).
Appears in 1 contract
Sources: Servicing Agreement
Servicer Termination Events. If The occurrence and continuance of any one of the following events (shall constitute a “Servicer Termination Event”) shall occur and be continuing on any date” hereunder:
(a) any failure by the Servicer to make any payment, transfer transfer, or deposit or to give instructions or notice to the Borrower, the Agent or any Lender as required by this Agreement on or before the date such paymentit as required by any Basic Document, transferto which it is a party, deposit, instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement and such which failure is not cured or waived remedied within three two Business Days following the occurrence thereofDays;
(b) any failure on the part of by the Servicer duly to observe or perform in any material respect any other covenants or agreements of deliver the Servicer set forth in this Agreement or any other Transaction Document to which it is a party as Servicer that continues unremedied (if susceptible to remedy) for a period of 30 days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer Monthly Report by the AgentReporting Date, any Lender or the Borrower and (ii) the date on which the Servicer becomes aware thereoffailure is not remedied within two Business Days;
(c) an Insolvency Event shall occur with respect to the Servicer or any Subsidiary of the Servicer;
(d) any failure by the Servicer shall fail duly to observe or perform in any material respect any other covenant or agreement of the Servicer set forth in this Agreement or the other Basic Documents to service which the Transferred Loans in accordance with Servicer is a party, which such failure remains unremedied for 30 days after the Credit and Collection Policyearlier of knowledge thereof by the Servicer or after the date on which written notice of such failure shall have been given to the Servicer;
(e) the Servicer agrees to or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender without the prior written consent of the Agent and each Lender;
(f) any Change in Control of the Servicer is made without the prior written consent of the Agent;
(g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;
(i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement;
(k) any representation, warranty warranty, or certification made by the Servicer in this Agreement any Basic Document to which it is a party or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certification, if capable of being remedied, shall continue for 30 days without being remedied or cured after the earlier of (i) receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certification;
(l) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer (individually or in the aggregate);
(m) any default by the Servicer in the making of any payment required to be made with respect to any material recourse debt or other obligation Basic Document to which it is a party shall prove to have been false or otherwise incorrect in any respect when made, deemed made, or delivered, which such incorrect representation, warranty, or certification materially and adversely affects the rights or interests of the Secured Parties and, if able to be cured, shall not have been cured for 30 days after the earlier of the date on which the Servicer first has knowledge thereof or the date on which written notice of such failure shall have been given to the Servicer;
(f) with respect to the initial Servicer only, either Lendbuzz Funding or a Subsidiary of Lendbuzz Funding shall default under any Indebtedness having a principal amount of $5,000,000 or greater, and (i) such default continues after the applicable grace period, if any, specified in the agreements or instruments relating to such Indebtedness, (ii) such default has not been waived by the required lenders, creditors, or similarly denominated parties under the agreements or instruments relating to such Indebtedness and in the manner specified in such agreements or instruments, and (iii) as a consequence of such default, either the required lenders, creditors, or similarly denominated parties have accelerated the maturity of such Indebtedness, or the acceleration of the maturity of such Indebtedness has occurred automatically, in all cases as specified in the agreements or instruments relating to such Indebtedness and in all cases the result of which acceleration (regardless of how it is denominated in such agreements or instruments) is to require the immediate repayment of principal on such Indebtedness;
(g) any material provision of any Basic Document to which the Servicer is a party shall in whole or in part, cease to be in full force and effect or cease to be the legally valid, binding and enforceable obligation of the Servicer;
(h) (i) one or more final nonappealable judgments shall be entered against the Servicer by one or more courts of competent jurisdiction assessing monetary damages, individually or in the aggregate over any calendar year, in excess of $5,000,000; (ii) one or more monetary settlements shall be entered into by the Servicer with any Person, individually or in the aggregate over any calendar year, in excess of $5,000,000; (iii) the IRS shall file notice of a Lien pursuant to Section 6323 of the Code with regard to any assets of the Servicer and such default is Lien shall not cured have been released within 30 days; or (iv) the relevant cure period or Pension Benefit Guaranty Corporation shall file notice of a Lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Servicer and such recourse debt or other obligation Lien shall be declared to be due and payable or required to be prepaid (other than by scheduled payment) prior to its maturity; ornot have been released within 30 days;
(ni) any two Change in Control shall occur with respect to Lendbuzz Funding without the prior Consent of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇the Administrative Agent;
(j) an Event of Default shall have occurred and is continuing and shall not have been waived;
(k) with respect to the initial Servicer, ▇▇▇▇ ▇▇▇▇▇▇▇ a Material Adverse Change with respect to Lendbuzz Funding shall have occurred and R. ▇▇▇ ▇▇▇▇▇▇▇ is continuing and shall not have been waived; and
(l) the Performance Guaranty shall cease to be employed by Kohlberg Capital in full force and effect (other than in accordance with its terms) or the capacity Performance Guarantor shall assert that it is not bound by, or otherwise seek to terminate or disaffirm its obligations under, the Performance Guaranty, or shall otherwise claim that the Performance Guaranty is in any way invalid or unenforceable.
(i) [Reserved];
(ii) the Administrative Agent (acting at the direction of executive officers thereof unless within 120 days or with the consent of the cessation of such employment, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably satisfactory to the Agent; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied at the expiration of any applicable cure period, the Agent, Required Lenders) by written notice to the Servicer (with a copy to each Agent, Lender, Hedge Counterparty, the Backup Servicer, the Trustee and the Backup Servicer Collateral Custodian) (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.26, may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. The Borrower shall pay all reasonable set-up ; (iii) the Administrative Agent may direct the Servicer to direct Collections to an account other than the Remittance Account or the Collection Account; and conversion costs associated with (iv) the transfer Administrative Agent may terminate the Collateral Custodian (if the Collateral Custodian is Lendbuzz Funding or an Affiliate of servicing rights Lendbuzz Funding) and cause the Collateral Custodian to deliver, or cause to be delivered, the Receivable Files and the related accounts and records maintained by the Collateral Custodian to the Successor ServicerAdministrative Agent, or its agent or designee, at such place as the Administrative Agent may reasonably designate.
Appears in 1 contract
Sources: Loan Agreement (Lendbuzz Inc.)
Servicer Termination Events. If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing on any date:
day: (ai) any failure by the Servicer to make any payment, transfer or deposit or as required by this Agreement and such failure shall continue for two (2) Business Days; (ii) any failure by the Servicer to give instructions or notice to the Borrower, any Managing Agent and/or the Administrative Agent or any Lender as required by this Agreement or to deliver any Required Reports hereunder on or before the date occurring two Business Days after the date such paymentinstructions, transfer, deposit, instruction notice or notice report is required to be made or given, as the case may be, under the terms of this Agreement and such failure is not cured or waived within three Business Days following the occurrence thereof;
Agreement; (biii) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any other Transaction Document to which it is a party as Servicer that 99 continues unremedied (if susceptible to remedy) for a period of 30 fifteen (15) days after the first to occur of (A) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Managing Agent or the Borrower and (B) the date on which the Servicer becomes or reasonably should have become aware thereof; (iv) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been false or incorrect in any material respect when made and such failure, if susceptible to a cure, shall continue unremedied for a period of fifteen (15) days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Lender Managing Agent or the Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof;
; (c) an Insolvency Event shall occur with respect to the Servicer;
(dv) the Servicer shall fail in any material respect to service the Transferred Loans in accordance with the Credit and Collection Policy;
; (evi) an Insolvency Event shall occur with respect to the Servicer; (vii) the Servicer agrees to or otherwise permits any amendment, modification, change, supplement or rescission of or to materially alter the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender Policy without the prior written consent of the Agent and each Lender;
Required Lenders; (fviii) any Change in Control financial or asset information reasonably requested by the Administrative Agent or any Managing Agent as provided herein is not provided as requested within five (5) Business Days (or such longer period as the Administrative Agent or such Managing Agent may consent to) of the Servicer is made without the prior written consent of the Agent;
(g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;
(i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement;
(k) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certification, if capable of being remedied, shall continue for 30 days without being remedied or cured after the earlier of (i) receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and such request; (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certification;
(lix) the rendering against the Servicer of one a final judgment, decree or more final judgments, decrees or orders order for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer U.S. $5,000,000 (individually or in the aggregate);
) and the continuance of such judgment, decree or order unsatisfied and in effect for any period of 30 consecutive days without a stay of execution; (mx) any default by the Servicer in failure of the making of Performance Guarantor to make any payment required to be made due with respect to any material aggregate recourse debt or other obligation to which it is a party and such default is not cured within obligations with an aggregate principal amount exceeding U.S. $1,000,000 or the relevant cure period occurrence of any event or any condition that would permit acceleration of such recourse debt or other obligation shall be declared to be due and payable obligations if such event or required to be prepaid condition has not been waived; (other than by scheduled payment) prior to its maturity; or
(nxi) any two Guarantor Event of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ Default shall cease to be employed by Kohlberg Capital occur; (xii) any Material Adverse Change occurs in the capacity of executive officers thereof unless within 120 days of the cessation of such employment, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably satisfactory to the Agent; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied at the expiration of any applicable cure period, the Agent, by written notice to the Servicer, the Trustee and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.26, terminate all of the rights and obligations financial condition of the Servicer as Servicer under this Agreement. The Borrower shall pay all reasonable set-up and conversion costs associated or a material adverse change occurs with the transfer of servicing rights regard to the Successor Servicer.collectibility of the Transferred Loans, taken as a whole; 100
Appears in 1 contract
Sources: Credit Agreement (Gladstone Investment Corporation\de)
Servicer Termination Events. If any one For purposes of this Agreement, each of the following events (shall constitute a “"Servicer Termination Event”) shall occur and be continuing on any date":
(a) any failure by the Servicer to make deposit into any paymentof the Local Collection Account, transfer any lock-box account specifically used (with the consent of the Purchaser) for receipt of payments in respect of the Receivables, or deposit the Collection Account any proceeds, or to give instructions or notice to the Borrower, the Agent or any Lender as required by this Agreement on or before the date such payment, transfer, deposit, instruction or notice is payment required to be made or given, as the case may be, so delivered under the terms of this Agreement and such failure is not cured or waived within three that continues unremedied for a period of two Business Days following the occurrence thereof(one Business Day with respect to payments of Purchase Amounts) after such payment is required to be deposited;
(b) failure by the Servicer to deliver to the Purchaser and the Paying Agent the Servicer's Certificate by the applicable Determination Date, or to observe any covenant or agreement set forth in Section 3.06;
(c) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any other Transaction Document to Agreement, which it is a party as Servicer that failure (i) materially and adversely affects the rights of the Purchaser and (ii) continues unremedied (if susceptible to remedy) for a period of 30 days after knowledge thereof by the first to occur of (i) Servicer or after the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Agent, any Lender or the Borrower and (ii) the date on which the Servicer becomes aware thereof;
(c) an Insolvency Event shall occur with respect to the ServicerPurchaser;
(d) any representation, warranty or statement of the Servicer made in this Agreement or any certificate, report or other writing delivered pursuant hereto shall fail prove to be incorrect in any material respect as of the time when the same shall have been made, and the incorrectness of such representation, warranty or statement has a material adverse effect on the Purchaser and, within 30 days after written notice thereof shall have been given to service the Transferred Loans Servicer by the Purchaser, the circumstances or condition in accordance with the Credit and Collection Policyrespect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured;
(e) the Servicer agrees to or otherwise permits any amendment, modification, change, supplement or rescission occurrence of or an Insolvency Event with respect to the Credit and Collection PolicyServicer or, in whole or in partso long as First Merchants is the Servicer, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender without the prior written consent of the Agent and each LenderSeller;
(f) any Change in Control failure by the Purchaser to have delivered a Servicer Extension Notice pursuant to Section 3.14 at least 5 Business Days prior to the expiration of the Servicer is made without the prior written consent of the Agent;any servicing term; or
(g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status is terminated as a business development company or as a registered investment company under the 1940 Act;
(i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement;
(k) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certification, if capable of being remedied, shall continue for 30 days without being remedied or cured after the earlier of (i) receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certification;
(l) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer (individually or in the aggregate);
(m) any default by the Servicer in the making of any payment required to be made servicer with respect to any material recourse debt trust that has issued one or other obligation to which it is a party and such default is not cured within the relevant cure period or any such recourse debt or other obligation shall be declared to be due and payable or required to be prepaid (other than by scheduled payment) prior to its maturity; or
(n) any two more classes of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ shall cease to be employed by Kohlberg Capital in the capacity of executive officers thereof unless within 120 days of the cessation of such employment, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably satisfactory to the Agent; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied at the expiration of any applicable cure period, the Agent, by written notice to the Servicer, the Trustee and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.26, terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicerasset backed securities.
Appears in 1 contract
Sources: Servicing Agreement (First Merchants Acceptance Corp)
Servicer Termination Events. If The occurrence and continuance of any one of the following events (shall constitute a “Servicer Termination Event”) shall occur and be continuing on any date” hereunder:
(a) any failure by the Servicer to make any payment, transfer transfer, or deposit or to give instructions or notice to the Borrower, the Agent or any Lender as required by this Agreement on or before the date such paymentit as required by any Basic Document, transferto which it is a party, deposit, instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement and such which failure is not cured or waived remedied within three two Business Days following the occurrence thereofDays;
(b) any failure on the part of by the Servicer duly to observe or perform in any material respect any other covenants or agreements of deliver the Servicer set forth in this Agreement or any other Transaction Document to which it is a party as Servicer that continues unremedied (if susceptible to remedy) for a period of 30 days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer Monthly Report by the AgentReporting Date, any Lender or the Borrower and (ii) the date on which the Servicer becomes aware thereoffailure is not remedied within two Business Days;
(c) an Insolvency Event shall occur with respect to the Servicer or any Subsidiary of the Servicer;
(d) any failure by the Servicer shall fail duly to observe or perform in any material respect any other covenant or agreement of the Servicer set forth in this Agreement or the other Basic Documents to service which the Transferred Loans in accordance with Servicer is a party, which such failure remains unremedied for 30 days after the Credit and Collection Policyearlier of knowledge thereof by the Servicer or after the date on which written notice of such failure shall have been given to the Servicer;
(e) the Servicer agrees to or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender without the prior written consent of the Agent and each Lender;
(f) any Change in Control of the Servicer is made without the prior written consent of the Agent;
(g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;
(i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement;
(k) any representation, warranty warranty, or certification made by the Servicer in this Agreement any Basic Document to which it is a party or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certification, if capable of being remedied, shall continue for 30 days without being remedied or cured after the earlier of (i) receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certification;
(l) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer (individually or in the aggregate);
(m) any default by the Servicer in the making of any payment required to be made with respect to any material recourse debt or other obligation Basic Document to which it is a party shall prove to have been false or otherwise incorrect in any respect when made, deemed made, or delivered, which such incorrect representation, warranty, or certification materially and adversely affects the rights or interests of the Secured Parties and, if able to be cured, shall not have been cured for 30 days after the earlier of the date on which the Servicer first has knowledge thereof or the date on which written notice of such failure shall have been given to the Servicer;
(f) with respect to the initial Servicer only, either Lendbuzz Funding or a Subsidiary of Lendbuzz Funding shall default under any Indebtedness having a principal amount of $5,000,000 or greater, and (i) such default continues after the applicable grace period, if any, specified in the agreements or instruments relating to such Indebtedness, (ii) such default has not been waived by the required lenders, creditors, or similarly denominated parties under the agreements or instruments relating to such Indebtedness and in the manner specified in such agreements or instruments, and (iii) as a consequence of such default, either the required lenders, creditors, or similarly denominated parties have accelerated the maturity of such Indebtedness, or the acceleration of the maturity of such Indebtedness has occurred automatically, in all cases as specified in the agreements or instruments relating to such Indebtedness and in all cases the result of which acceleration (regardless of how it is denominated in such agreements or instruments) is to require the immediate repayment of principal on such Indebtedness;
(g) any material provision of any Basic Document to which the Servicer is a party shall in whole or in part, cease to be in full force and effect or cease to be the legally valid, binding and enforceable obligation of the Servicer;
(h) (i) one or more final nonappealable judgments shall be entered against the Servicer by one or more courts of competent jurisdiction assessing monetary damages, individually or in the aggregate over any calendar year, in excess of $5,000,000; (ii) one or more monetary settlements shall be entered into by the Servicer with any Person, individually or in the aggregate over any calendar year, in excess of $5,000,000; (iii) the IRS shall file notice of a Lien pursuant to Section 6323 of the Code with regard to any assets of the Servicer and such default is Lien shall not cured have been released within 30 days; or (iv) the relevant cure period or Pension Benefit Guaranty Corporation shall file notice of a Lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Servicer and such recourse debt or other obligation Lien shall be declared to be due and payable or required to be prepaid (other than by scheduled payment) prior to its maturity; ornot have been released within 30 days;
(ni) any two Change in Control shall occur with respect to Lendbuzz Funding without the prior Consent of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇the Administrative Agent;
(j) an Event of Default shall have occurred and is continuing and shall not have been waived;
(k) with respect to the initial Servicer, ▇▇▇▇ ▇▇▇▇▇▇▇ a Material Adverse Change with respect to Lendbuzz Funding shall have occurred and R. ▇▇▇ ▇▇▇▇▇▇▇ is continuing and shall not have been waived; and
(l) the Performance Guaranty shall cease to be employed by Kohlberg Capital in full force and effect (other than in accordance with its terms) or the capacity Performance Guarantor shall assert that it is not bound by, or otherwise seek to terminate or disaffirm its obligations under, the Performance Guaranty, or shall otherwise claim that the Performance Guaranty is in any way invalid or unenforceable. Upon the occurrence of executive officers thereof unless within 120 days any of the cessation of such employmentforegoing, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably satisfactory to the Agent; then notwithstanding anything herein to the contrary, the Termination Date with respect to each Related Loan shall occur and, so long as any such Servicer Termination Events Event shall not have been remedied at the expiration of within any applicable cure periodperiod or waived in writing by the Required Lenders, the Agent, following shall immediately occur without further action: (i) [Reserved]; (ii) the Administrative Agent (acting at the direction of or with the consent of the Required Lenders) by written notice to the Servicer (with a copy to each Agent, Lender, Hedge Counterparty, the Backup Servicer, the Trustee and the Backup Servicer Collateral Custodian) (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.26, may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. The Borrower shall pay all reasonable set-up ; (iii) the Administrative Agent may direct the Servicer to direct Collections to an account other than the Remittance Account or the Collection Account; and conversion costs associated with (iv) the transfer Administrative Agent may terminate the Collateral Custodian (if the Collateral Custodian is Lendbuzz Funding or an Affiliate of servicing rights Lendbuzz Funding) and cause the Collateral Custodian to deliver, or cause to be delivered, the Receivable Files and the related accounts and records maintained by the Collateral Custodian to the Successor ServicerAdministrative Agent, or its agent or designee, at such place as the Administrative Agent may reasonably designate.
Appears in 1 contract
Sources: Loan Agreement (Lendbuzz Inc.)
Servicer Termination Events. (a) If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing on any dateday:
(ai) any failure by the Servicer to make any payment, transfer or deposit or as required by this Agreement and such failure shall continue for two (2) Business Days;
(ii) any failure by the Servicer to give instructions or notice to the Borrower, any Managing Agent and/or the Administrative Agent or any Lender as required by this Agreement or to deliver any Required Reports hereunder on or before the date occurring two Business Days after the date such paymentinstructions, transfer, deposit, instruction notice or notice report is required to be made or given, as the case may be, under the terms of this Agreement and such failure is not cured or waived within three Business Days following the occurrence thereofAgreement;
(biii) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any other Transaction Document to which it is a party as Servicer that continues unremedied (if susceptible to remedy) for a period of 30 fifteen (15) days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Lender Managing Agent or the Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof;
(c) an Insolvency Event shall occur with respect to the Servicer;
(d) the Servicer shall fail in any material respect to service the Transferred Loans in accordance with the Credit and Collection Policy;
(e) the Servicer agrees to or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender without the prior written consent of the Agent and each Lender;
(f) any Change in Control of the Servicer is made without the prior written consent of the Agent;
(g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;
(i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement;
(kiv) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been false or incorrect in any material respect when made, made and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certificationfailure, if capable of being remediedsusceptible to a cure, shall continue unremedied for 30 a period of fifteen (15) days without being remedied or cured after the earlier first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Managing Agent or the Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof;
(v) the Servicer shall fail to service the Transferred Loans in accordance with the Credit and Collection Policy;
(vi) an Insolvency Event shall occur with respect to the Servicer;
(vii) the Servicer agrees to materially alter the Credit and Collection Policy without the prior written consent of the Required Committed Lenders;
(viii) any financial or asset information reasonably requested by the Administrative Agent or any Managing Agent as provided herein is not provided as requested within five (5) Business Days (or such longer period as the Administrative Agent or such Managing Agent may consent to) of the receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certificationrequest;
(lix) the rendering against the Servicer of one a final judgment, decree or more final judgments, decrees or orders order for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer U.S. $5,000,000 (individually or in the aggregate)) and the continuance of such judgment, decree or order unsatisfied and in effect for any period of 30 consecutive days without a stay of execution;
(mx) any default by the Servicer in failure of the making of Performance Guarantor to make any payment required to be made due with respect to any material aggregate recourse debt or other obligation to which it is a party and such default is not cured within obligations with an aggregate principal amount exceeding U.S. $1,000,000 or the relevant cure period occurrence of any event or any condition that would permit acceleration of such recourse debt or other obligation obligations if such event or condition has not been waived;
(xi) any Guarantor Event of Default shall be declared occur;
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or a material adverse change occurs with regard to be due the collectibility of the Transferred Loans, taken as a whole;
(xiii) any Change-in-Control of the Servicer is made without the prior written consent of the Borrower and payable or required the Administrative Agent;
(xiv) the Performance Guarantor shall fail to be prepaid maintain a minimum Net Worth equal to the sum of (other than i) of $200,000,000 plus (ii) 50% of any equity and Subordinated Debt issued by scheduled paymentthe Performance Guarantor after the Effective Date;
(xv) prior the Performance Guarantor shall fail to its maturitysatisfy the RIC/BDC Requirements; or
(nxvi) the Performance Guarantor shall pay any two cash dividends; provided that the Performance Guarantor shall be permitted to pay cash dividends if the Servicer shall have caused the Performance Guarantor to have delivered a certificate to the Administrative Agent, substantially in the form of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇Exhibit G hereto, ▇▇▇▇ ▇▇▇▇▇▇▇ at least 10 Business Days prior to the making of any such cash dividend to the effect that (i) the amount of the declared dividend has been determined in good faith by the Board of Directors of the Performance Guarantor on the basis of the most current financial information of the Performance Guarantor then available for the related period; (ii) the amount of the declared dividend does not exceed the net investment income and R. ▇▇▇ ▇▇▇▇▇▇▇ shall cease the net capital gain realized by the Performance Guarantor for the related period, based on the financial information referred to in clause (i) above; and (iii) to the extent the declared dividend does not equal the net investment income and the net capital gain realized by the Performance Guarantor for the related period, the proposed dividend to be employed declared by Kohlberg Capital in the capacity of executive officers thereof unless within 120 days of Performance Guarantor for the cessation of immediately ensuing period shall be either (x) reduced by the amount such employmentdividend for the immediately preceding period exceeded the net investment income and the net capital gain realized by the Performance Guarantor for the immediately preceding period or (y) increased by the amount such dividend or distribution for the immediately preceding period was less than the net investment income and the net capital gains realized by the Performance Guarantor for the immediately preceding period; then, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably satisfactory to the Agent; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied at the expiration of any applicable cure period, the AgentAdministrative Agent may, or at the direction of the Required Committed Lenders shall, by written notice to the Servicer, the Trustee Servicer and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.267.19, either (i) terminate all of the rights and obligations of the Servicer as Servicer under this AgreementAgreement or (ii) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and simultaneously reappoint the Servicer for a period not to exceed one month (subject to renewal at the sole discretion of the Administrative Agent, acting at the direction of the Required Committed Lenders), at the expiration of which appointment the Servicer’s rights and obligations hereunder shall automatically terminate without further action on the part of any party hereto. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
Appears in 1 contract
Servicer Termination Events. (a) If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing on any dateday:
(ai) any failure by the Servicer to make any payment, transfer or deposit or as required by this Agreement and such failure shall continue for two (2) Business Days;
(ii) any failure by the Servicer to give instructions or notice to the Borrower, any Managing Agent and/or the Administrative Agent or any Lender as required by this Agreement or to deliver any Required Reports hereunder on or before the date occurring two Business Days after the date such paymentinstructions, transfer, deposit, instruction notice or notice report is required to be made or given, as the case may be, under the terms of this Agreement and such failure is not cured or waived within three Business Days following the occurrence thereofAgreement;
(biii) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any other Transaction Document to which it is a party as Servicer that continues unremedied (if susceptible to remedy) for a period of 30 fifteen (15) days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Lender Managing Agent or the Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof;
(c) an Insolvency Event shall occur with respect to the Servicer;
(d) the Servicer shall fail in any material respect to service the Transferred Loans in accordance with the Credit and Collection Policy;
(e) the Servicer agrees to or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender without the prior written consent of the Agent and each Lender;
(f) any Change in Control of the Servicer is made without the prior written consent of the Agent;
(g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;
(i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement;
(kiv) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been false or incorrect in any material respect when made, made and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certificationfailure, if capable of being remediedsusceptible to a cure, shall continue unremedied for 30 a period of fifteen (15) days without being remedied or cured after the earlier first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Managing Agent or the Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof;
(v) the Servicer shall fail to service the Transferred Loans in accordance with the Credit and Collection Policy;
(vi) an Insolvency Event shall occur with respect to the Servicer;
(vii) the Servicer agrees to materially alter the Credit and Collection Policy without the prior written consent of the Required Lenders;
(viii) any financial or asset information reasonably requested by the Administrative Agent or any Managing Agent as provided herein is not provided as requested within five (5) Business Days (or such longer period as the Administrative Agent or such Managing Agent may consent to) of the receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certificationrequest;
(lix) the rendering against the Servicer of one a final judgment, decree or more final judgments, decrees or orders order for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer U.S. $5,000,000 (individually or in the aggregate)) and the continuance of such judgment, decree or order unsatisfied and in effect for any period of 30 consecutive days without a stay of execution;
(mx) any default by the Servicer in failure of the making of Performance Guarantor to make any payment required to be made due with respect to any material aggregate recourse debt or other obligation to which it is a party and such default is not cured within obligations with an aggregate principal amount exceeding U.S. $1,000,000 or the relevant cure period occurrence of any event or any condition that would permit acceleration of such recourse debt or other obligation obligations if such event or condition has not been waived;
(xi) any Guarantor Event of Default shall be declared occur;
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or a material adverse change occurs with regard to be due the collectibility of the Transferred Loans, taken as a whole;
(xiii) any Change-in-Control of the Servicer is made without the prior written consent of the Borrower and payable or required the Administrative Agent;
(xiv) the Performance Guarantor shall fail to be prepaid maintain a minimum Net Worth equal to the sum of (other than i) of $200,000,000 plus (ii) 50% of any equity and Subordinated Debt issued by scheduled paymentthe Performance Guarantor after May 15, 2009;
(xv) prior the Performance Guarantor shall fail to its maturitysatisfy the RIC/BDC Requirements; or
(nxvi) the Performance Guarantor shall pay any two cash dividends; provided that the Performance Guarantor shall be permitted to pay cash dividends if the Servicer shall have caused the Performance Guarantor to have delivered a certificate to the Administrative Agent, substantially in the form of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇Exhibit G hereto, ▇▇▇▇ ▇▇▇▇▇▇▇ at least 10 Business Days prior to the making of any such cash dividend to the effect that (i) the amount of the declared dividend has been determined in good faith by the Board of Directors of the Performance Guarantor on the basis of the most current financial information of the Performance Guarantor then available for the related period; (ii) the amount of the declared dividend does not exceed the net investment income and R. ▇▇▇ ▇▇▇▇▇▇▇ shall cease the net capital gain realized by the Performance Guarantor for the related period, based on the financial information referred to in clause (i) above; and (iii) to the extent the declared dividend does not equal the net investment income and the net capital gain realized by the Performance Guarantor for the related period, the proposed dividend to be employed declared by Kohlberg Capital in the capacity Performance Guarantor for the immediately ensuing period shall be either (x) reduced by the amount such dividend for the immediately preceding period exceeded the net investment income and the net capital gain realized by the Performance Guarantor for the immediately preceding period or (y) increased by the amount such dividend or distribution for the immediately preceding period was less than the net investment income and the net capital gains realized by the Performance Guarantor for the immediately preceding period; provided, however, that for purposes of executive officers thereof unless within 120 days this Section 7.18(xvi), net investment income shall not be reduced by non-cash compensation expenses related to employee loans made prior to the Effective Date for the exercise of employee stock options and calculated as the difference between (a) the outstanding loan balances plus accrued interest and (b) the value of the cessation of such employmentunderlying stock at the determination date; then, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably satisfactory to the Agent; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied at the expiration of any applicable cure period, the AgentAdministrative Agent may, or at the direction of the Required Lenders shall, by written notice to the Servicer, the Trustee Servicer and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.267.19, either (i) terminate all of the rights and obligations of the Servicer as Servicer under this AgreementAgreement or (ii) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and simultaneously reappoint the Servicer for a period not to exceed one month (subject to renewal at the sole discretion of the Administrative Agent, acting at the direction of the Required Lenders), at the expiration of which appointment the Servicer’s rights and obligations hereunder shall automatically terminate without further action on the part of any party hereto. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
Appears in 1 contract
Servicer Termination Events. If (a) For purposes of this Agreement, the occurrence and continuance of any one of the following events (shall constitute a “Servicer Termination Event”) shall occur and be continuing on any date:
(ai) any failure by the Servicer to make deposit into the Collection Account any payment, transfer or deposit or to give instructions or notice to the Borrower, the Agent proceeds or any Lender as required by this Agreement on or before the date such payment, transfer, deposit, instruction or notice is payment required to be made or given, as the case may be, so delivered under the terms of this Agreement and such failure is not cured or waived within three that continues unremedied for a period of two (2) Business Days following the occurrence thereofDays;
(bii) any representation or warranty made or deemed made by or on behalf of the Servicer in or in connection with this Agreement, the other Basic Documents, or in any report, certificate, financial statement or other document furnished pursuant to or in connection herewith or therewith or any amendment or modification hereof or thereof, shall prove to have been incorrect when made or deemed made and the circumstance or condition in respect of which such representation or warranty was incorrect shall not have been eliminated or otherwise cured for a period of thirty (30) days;
(iii) failure by the Servicer to deliver to the Owner Trustee, the Indenture Trustee, and the Seller the Servicer’s Monthly Certificate by the applicable Determination Date, which failure continues unremedied for a period of five (5) Business Days;
(iv) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any other Transaction Document to Agreement, which it is a party as Servicer that failure (i) could materially and adversely affect the rights of the Noteholders and (ii) continues unremedied (if susceptible to remedy) for a period of 30 thirty (30) days after after: (A) the first to occur date of discovery of such failure by a Responsible Officer of the Servicer; (iB) the date on which the Servicer should reasonably have been aware of such failure; or (C) written notice of such failure requiring the same to be remedied shall have been given to received by the Servicer by from any of the AgentOwner Trustee, any Lender the Indenture Trustee or the Borrower and (ii) Noteholders holding at least 25% of the date on which Note Balance of the Servicer becomes aware thereofOutstanding Notes of the Controlling Class;
(cv) the Servicer shall cease to be an Eligible Servicer;
(vi) an Insolvency Event shall occur with respect to the Servicer;
(dvii) the Servicer shall fail in has assigned or delegated any material respect to service the Transferred Loans of its obligations under this Agreement or any other Basic Document other than in accordance with the Credit and Collection Policy;terms herein and/or therein, as applicable; or
(eviii) the Servicer agrees has failed to obtain or otherwise permits any amendment, modification, change, supplement or rescission maintain all licenses and approvals necessary for the conduct of or its business in the jurisdictions where the failure to the Credit and Collection Policy, in whole or in part, that do so could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender without the prior written consent of the Agent and each Lender;
(f) any Change in Control of the Servicer is made without the prior written consent of the Agent;
(g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;
(i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement;
(k) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certification, if capable of being remedied, shall continue for 30 days without being remedied or cured after the earlier of (i) receipt by the Servicer of written notice with respect thereto from the Agent Issuer or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certification;
(l) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer (individually or in the aggregate);
(m) any default by the Servicer in the making of any payment required to be made with respect to any material recourse debt or other obligation to which it is a party and such default is not cured within the relevant cure period or any such recourse debt or other obligation shall be declared to be due and payable or required to be prepaid (other than by scheduled payment) prior to its maturity; or
(n) any two of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ shall cease to be employed by Kohlberg Capital in the capacity of executive officers thereof unless within 120 days of the cessation of such employment, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably satisfactory to the Agent; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied at the expiration of any applicable cure period, the Agent, by written notice to the Servicer, the Trustee and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.26, terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor ServicerNoteholders.
Appears in 1 contract
Sources: Sale and Servicing Agreement (California Republic Auto Receivables Trust 2015-2)
Servicer Termination Events. If (a) Servicer’s right to service pursuant to each Servicing Agreement shall terminate upon the occurrence of any one of the following events (each a “Servicer Termination Event”) shall occur and be continuing on any date:):
(ai) An Event of Default;
(ii) This Servicer Notice is deemed unenforceable;
(iii) Servicer materially breaches or fails to comply with (A) the Servicing Agreement and such breach or failure continues uncured or unremedied for a period of thirty (30) calendar days or Servicer fails to diligently pursue a cure or remedy (without regard to any other cure periods) or (B) this Servicer Notice (relating to the deposit or transfer of funds) and such breach or failure by continues uncured or unremedied for a period of two (2) Business Days (without regard to any other cure periods), in each case, after a Responsible Officer of a Seller Party or Servicer first learns of it;
(iv) Servicer is unable to comply with the eligibility requirements, or ceases to be an approved servicer, of, in each case, GNMA, HUD or VA;
(v) Servicer fails to make any paymentrequired servicing advance, transfer to the extent that such failure would be reasonably likely to impair FHA Mortgage Insurance coverage or deposit VA Loan Guaranty Agreement coverage, with respect to the principal portion of any Mortgage Loan or would be reasonably likely to give instructions rise to a liability to HUD, FHA or notice VA, as determined by Administrative Agent in its good faith discretion;
(vi) Servicer fails to make a required deposit to the Borrower, the Agent or any Lender as required by this Agreement on or before the date such payment, transfer, deposit, instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement and such failure Inbound Account (i) which is not cured within one (1) Business Day of Seller Party’s knowledge of such failure, or waived within three Business Days following (ii) to the occurrence thereofextent such failure or failures occur on multiple occasions (regardless of any subsequent cure);
(vii) Servicer provides a notice of its intent to resign as Servicer of the Mortgage Loans and REO Property and a new Servicer reasonably acceptable to Administrative Agent is not promptly appointed;
(viii) Servicer is subject to FHA, HUD or VA fees or penalties which have not been paid or is subject to a set-off by any of FHA, HUD or VA which (A) is reasonably likely to result in a Servicer Material Adverse Effect or (B) failure or failures occur on a persistent and material basis after notice or knowledge thereof (regardless of any subsequent cure); or
(ix) There shall occur a Servicer Material Adverse Effect, in the determination of Administrative Agent. LEGAL02/37648106v16
(b) any failure on Upon the part occurrence of a Servicer Termination Event at the Servicer duly to observe or perform in any material respect any other covenants or agreements Request of the Servicer set forth in this Agreement or any other Transaction Document to which it is a party as Servicer that continues unremedied (if susceptible to remedy) for a period of 30 days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Lender or the Borrower and (ii) the date on which the Servicer becomes aware thereof;
(c) an Insolvency Event shall occur with respect to the Servicer;
(d) the Servicer shall fail in any material respect transfer the servicing to service the Transferred Loans a successor servicer in accordance with the Credit and Collection Policy;
(e) the Servicer agrees to or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests terms of the Lender without the prior written consent of the Agent and each Lender;
(f) any Change in Control of the Servicer is made without the prior written consent of the Agent;
(g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;
(i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Servicing Agreement;
(k) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certification, if capable of being remedied, shall continue for 30 days without being remedied or cured after the earlier of (i) receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certification;
(l) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer (individually or in the aggregate);
(m) any default by the Servicer in the making of any payment required to be made with respect to any material recourse debt or other obligation to which it is a party and such default is not cured within the relevant cure period or any such recourse debt or other obligation shall be declared to be due and payable or required to be prepaid (other than by scheduled payment) prior to its maturity; or
(n) any two of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ shall cease to be employed by Kohlberg Capital in the capacity of executive officers thereof unless within 120 days of the cessation of such employment, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably satisfactory to the Agent; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied at the expiration of any applicable cure period, the Agent, by written notice to the Servicer, the Trustee and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.26, terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
Appears in 1 contract
Servicer Termination Events. (a) If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing on any dateday:
(ai) any failure by the Servicer to make any payment, transfer or deposit or as required by this Agreement and such failure shall continue for two (2) Business Days;
(ii) any failure by the Servicer to give instructions or notice to the Borrower, any Managing Agent and/or the Administrative Agent or any Lender as required by this Agreement or to deliver any Required Reports hereunder on or before the date occurring two Business Days after the date such paymentinstructions, transfer, deposit, instruction notice or notice report is required to be made or given, as the case may be, under the terms of this Agreement and such failure is not cured or waived within three Business Days following the occurrence thereofAgreement;
(biii) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any other Transaction Document to which it is a party as Servicer that continues unremedied (if susceptible to remedy) for a period of 30 fifteen (15) days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Lender Managing Agent or the Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof;
(c) an Insolvency Event shall occur with respect to the Servicer;
(d) the Servicer shall fail in any material respect to service the Transferred Loans in accordance with the Credit and Collection Policy;
(e) the Servicer agrees to or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender without the prior written consent of the Agent and each Lender;
(f) any Change in Control of the Servicer is made without the prior written consent of the Agent;
(g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;
(i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement;
(kiv) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been false or incorrect in any material respect when made, made and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certificationfailure, if capable of being remediedsusceptible to a cure, shall continue unremedied for 30 a period of fifteen (15) days without being remedied or cured after the earlier first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Managing Agent or the Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof;
(v) the Servicer shall fail to service the Transferred Loans in accordance with the Credit and Collection Policy;
(vi) an Insolvency Event shall occur with respect to the Servicer;
(vii) the Servicer agrees to materially alter the Credit and Collection Policy without the prior written consent of the Required Lenders;
(viii) any financial or asset information reasonably requested by the Administrative Agent or any Managing Agent as provided herein is not provided as requested within five (5) Business Days (or such longer period as the Administrative Agent or such Managing Agent may consent to) of the receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certificationrequest;
(lix) the rendering against the Servicer of one a final judgment, decree or more final judgments, decrees or orders order for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer U.S. $5,000,000 (individually or in the aggregate)) and the continuance of such judgment, decree or order unsatisfied and in effect for any period of 30 consecutive days without a stay of execution;
(mx) any default by the Servicer in failure of the making of Performance Guarantor to make any payment required to be made due with respect to any material aggregate recourse debt or other obligation to which it is a party and such default is not cured within obligations with an aggregate principal amount exceeding U.S. $1,000,000 or the relevant cure period occurrence of any event or any condition that would permit acceleration of such recourse debt or other obligation shall be declared to be due and payable obligations if such event or required to be prepaid (other than by scheduled payment) prior to its maturity; orcondition has not been waived;
(nxi) any two Guarantor Event of ▇▇▇▇▇▇▇▇Default shall occur;
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or a material adverse change occurs with regard to the collectibility of the Transferred Loans, taken as a whole;
(xiii) any Change-in-Control of the Servicer is made without the prior written consent of the Borrower and the Administrative Agent;
(xiv) the Performance Guarantor shall fail to maintain a minimum Net Worth equal to the sum of (i) of $205,000,000 plus (ii) 50% of any equity and Subordinated Debt issued by the Performance Guarantor after the Effective Date minus (iii) 50% of any equity and Subordinated Debt retired or redeemed by the Performance Guarantor after the Effective Date; provided that, in no event shall the minimum Net Worth be less than $205,000,000;
(xv) the Performance Guarantor shall fail to satisfy the RIC/BDC Requirements;
(xvi) the Performance Guarantor shall fail to maintain “asset coverage” (as defined in and determined pursuant to Section 18 of the 1▇▇▇ ▇▇▇▇▇▇▇▇) of at least 200% (or such higher percentage as may be set forth in Section 18 of the 1940 Act); provided, ▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ that for purposes of testing compliance with this Section 7.18(a)(xvi) the impact of the election of ASC 825 or similar accounting guideline with respect to determining the fair value of the debt of the Performance Guarantor on a consolidated basis shall cease be excluded (for avoidance of doubt, the intent of this language is to cause the debt of the Performance Guarantor to be employed by Kohlberg Capital valued at par value rather than fair value)); or
(xvii) the Performance Guarantor shall pay any cash dividends; provided that the Performance Guarantor shall be permitted to pay cash dividends if the Servicer shall have caused the Performance Guarantor to have delivered a certificate to the Administrative Agent, substantially in the capacity form of executive officers thereof unless within 120 days Exhibit G hereto, at least 10 Business Days prior to the making of any such cash dividend to the effect that:
(A) the amount of the cessation declared dividend has been determined in good faith by the Board of such employmentDirectors of the Performance Guarantor on the basis of the most current financial projections of the Performance Guarantor then available for the Related Period (as defined in Exhibit G hereof);
(B) the amount of the declared dividend does not exceed the sum of (i) the net investment income and the net capital gain projected to be realized by the Performance Guarantor for the Related Period based on the financial projections referred to in clause (A) above, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably satisfactory and (ii) the amounts deemed by the Performance Guarantor to be considered as having been paid during the prior year in accordance with Section 855(a) of the Code (together clauses (i) and (ii) comprising the “Projected Available Amount”); and
(C) to the Agentextent the declared dividend referred to in clause (B) above exceeds the sum of (i) the net investment income and the net capital gain actually realized by the Performance Guarantor for the Related Period, plus (ii) the amounts deemed by Performance Guarantor to be considered as having been paid during the prior year in accordance with Section 855(a) of the Code (the “Excess Payment”); then the proposed dividend to be declared by the Performance Guarantor for the immediately ensuing Related Period shall be reduced by any positive amount resulting from the following calculation: (x) the ensuing Related Period’s proposed declared dividend plus the Excess Payment minus (y) the ensuing Related Period’s Projected Available Amount. then, notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied at the expiration of any applicable cure period, the AgentAdministrative Agent may, or at the direction of the Required Lenders shall, by written notice to the Servicer, the Trustee Servicer and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.267.19, either (i) terminate all of the rights and obligations of the Servicer as Servicer under this AgreementAgreement or (ii) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and simultaneously reappoint the Servicer for a period not to exceed one month (subject to renewal at the sole discretion of the Administrative Agent, acting at the direction of the Required Lenders), at the expiration of which appointment the Servicer’s rights and obligations hereunder shall automatically terminate without further action on the part of any party hereto. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
Appears in 1 contract
Servicer Termination Events. If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing on any date:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Borrower, the Deal Agent or any Lender Agent as required by this Agreement Agreement, or to deliver any Required Reports hereunder on or before the date occurring two Business Days after the date such payment, transfer, deposit, instruction of notice or notice report is required to be made or given, as the case may be, under the terms of this Agreement and such failure is not cured or waived within three Business Days following the occurrence thereofAgreement;
(b) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any other Transaction Document to which it is a party as Servicer that continues unremedied (if susceptible to remedy) for a period of 30 days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Agent, any Lender Deal Agent or the Borrower and (ii) the date on which an officer of the Servicer becomes aware thereof;
(c) an Insolvency Event shall occur with respect to the Servicer;
(d) the Servicer shall fail in any material respect to service the Transferred Loans in accordance with the Credit and Collection Policy;
(e) the Servicer agrees to or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender without the prior written consent of the Agent and each Lender;
(f) any Change in Control of the Servicer is made without the prior written consent of the Agent;
(g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;
(i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement;
(k) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, and such incorrect representation, warranty or certification can reasonably that continues to be expected to have unremedied for a material adverse effect on the interests period of any party hereto, and such incorrect representation, warranty or certification, if capable of being remedied, shall continue for 30 days without being remedied or cured after the earlier first to occur of (i) the date on which written notice of such incorrectness requiring the same to be remedied shall have been given to the Servicer by the Deal Agent or the Borrower and (ii) the date on which the Servicer becomes aware thereof;
(d) the Servicer shall fail in any material respect to service the Transferred Loans in accordance with the Credit and Collection Policy;
(e) an Insolvency Event shall occur with respect to the Servicer or any of its Affiliates;
(f) the Servicer agrees to or otherwise permits (x) any change in the Credit and Collection Policy which would materially and adversely affect or impair the collectibility of any Transferred Loan, or (y) any material change in the Credit and Collection Policy without the prior written consent of the Deal Agent and each Lender Agent;
(g) any financial or asset information reasonably requested by the Deal Agent or the other Secured Parties as provided herein is not provided as requested within five Business Days of the receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certificationrequest;
(lh) the rendering against the Servicer of one a final judgment, decree or more final judgments, decrees or orders order for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer U.S. $5,000,000 (individually or in the aggregate)) and the continuance of such judgment, decree or order unsatisfied and in effect for any period of 61or more consecutive days without a stay of execution;
(mi) any default by the failure of the Servicer in the making of to make any payment required to be made due with respect to any material aggregate recourse debt or other obligation to which it is a party and such default is not cured within obligations with an aggregate principal amount exceeding U.S. $2,500,000 or the relevant cure period occurrence of any event or any condition that would permit acceleration of such recourse debt or other obligation shall be declared obligations if such event or condition has not been waived;
(j) the Servicer fails to be due maintain a minimum Net Worth of at least $1,000,000,000 plus seventy-five (75%) percent of any new equity and payable or required to be prepaid (other than by scheduled payment) prior to its maturitySubordinated Debt issued after March 31, 2004; or
(nk) any two of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ shall cease to be employed by Kohlberg Capital in the capacity of executive officers thereof unless within 120 days Change-in-Control of the cessation Servicer is made without the prior written consent of such employment, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably satisfactory the Borrower and the Deal Agent; or
(l) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the Agent1940 Act; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied at the expiration of any applicable cure period, the Deal Agent, by written notice to the Servicer, the Trustee Servicer and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.26, terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
Appears in 1 contract
Sources: Loan Funding and Servicing Agreement (American Capital Strategies LTD)
Servicer Termination Events. If (1) The occurrence of any one or more of the following events (shall be a “Servicer Termination Event”) shall occur and be continuing on any dateservicer termination event” in relation to the Series 2023-1 Ownership Interest:
(a) any failure by the Servicer fails to make any paymentdistribution, transfer or deposit or to give instructions or notice to required in respect of the Borrower, the Agent or any Lender as required by this Agreement on or before the date such payment, transfer, deposit, instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement Series 2023-1 Ownership Interest and such failure is not cured continues for a period of five (5) Business Days, or waived within three the Servicer fails to observe or perform any covenant or agreement contained in the Pooling and Servicing Agreement or this Series 2023-1 Purchase Agreement, if such failure has a material adverse effect on the ability of the Series 2023-1 Co-Owner to satisfy its obligations to holders of the Series 2023-1 Senior Notes or the Series 2023-1 Subordinated Notes and continues unremedied for a period of thirty (30) Business Days following after delivery by the occurrence thereofCustodian or the Issuer Trustee of written notice thereof to the Servicer;
(b) any failure representation or warranty made by the Servicer in the Pooling and Servicing Agreement or this Series 2023-1 Purchase Agreement is found to have been incorrect when made, or any information required thereby or hereby to be given by the Servicer is found to have been incorrect when given, and such incorrect representation, warranty or information has a material adverse effect on the part ability of the Servicer duly Series 2023-1 Co-Owner to observe or perform in any material respect any other covenants or agreements satisfy its obligations to holders of the Servicer set forth in this Agreement Series 2023-1 Senior Notes or any other Transaction Document the Series 2023-1 Subordinated Notes and continues to which it is a party as Servicer that continues be incorrect or unremedied (if susceptible to remedy) for a period of 30 days thirty (30) Business Days after delivery by the first to occur Custodian or the Issuer Trustee of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given thereof to the Servicer by the Agent, any Lender or the Borrower and (ii) the date on which the Servicer becomes aware thereofServicer;
(c) an Insolvency Event shall occur except where the terms of Section 9.5 of the Pooling and Servicing Agreement have been complied with, there is commenced against the Servicer any proceeding or the taking of any step by or against the Servicer for the dissolution, liquidation or winding up of the Servicer or for any relief from the laws of any jurisdiction relating to bankruptcy, insolvency, reorganization, arrangement, compromise or winding up, or for the appointment of one or more of a trustee, receiver, receiver and manager, custodian, liquidator or other person with similar powers with respect to the Servicer, unless such proceeding or step is being contested in good faith by the Servicer;
(d) the Servicer shall fail ceases to carry on a revolving credit card business except in any material the course of carrying out a transaction in respect to service of which the Transferred Loans in accordance with conditions of Section 9.4 or Section 9.5 of the Credit Pooling and Collection Policy;Servicing Agreement are observed and performed; and
(e) if CT Bank is the Servicer agrees and a Standby Servicer and an Independent Investment Advisor have been appointed and have agreed to or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender without the prior written consent of the Agent and each Lender;
(f) any Change in Control of the Servicer is made without the prior written consent of the Agent;
(g) as of any date after the date of the Initial Fundingact under Section 9.2, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventyIndependent Investment Advisor notifies the Series 2023-five (75%) percent of any new equity issued after December 111 Co-Owner, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;Administrator and CT Bank in writing that:
(i) in its reasonable opinion, there has been a material adverse change in the Servicer’s Leverage Ratio shall exceed 1.0:1.0;financial condition or operation of CT Bank that is reasonably likely to result in CT Bank being unable to pay its liabilities as they become due within ninety (90) days of the date on which the Independent Investment Advisor became aware of such material adverse change, and
(jii) any failure as a result of such material adverse change, the Independent Investment Advisor believes that it is in the best interests of the holders of Series 2023-1 Notes that CT Bank be replaced as the Servicer by the Servicer Standby Servicer, and accordingly, the Independent Investment Advisor recommends in writing that CT Bank be so replaced as Servicer; provided, however, that no servicer termination event in respect of the Series 2023-1 Ownership Interest will be considered to deliver any Required Reports hereunder have occurred if, on or before the date fifth (5th) Business Day occurring five Business Days after such recommendation, the date holders of the Series 2023-1 Notes provide the Issuer Trustee with a Noteholder Direction to the effect that such report is required event shall not give rise to be made or given, as the case may be, under the terms of this Agreement;a servicer termination event for these purposes.
(k2) any representation, warranty or certification made A servicer termination event in respect of the Series 2023-1 Ownership Interest may be waived by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certification, if capable of being remedied, shall continue for 30 days without being remedied or cured after the earlier of (i) receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certification;
(l) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer (individually or in the aggregate);
(m) any default by the Servicer in the making of any payment required to be made with respect to any material recourse debt or other obligation to which it is a party and such default is not cured within the relevant cure period or any such recourse debt or other obligation shall be declared to be due and payable or required to be prepaid (other than by scheduled payment) prior to its maturity; or
(n) any two of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ shall cease to be employed by Kohlberg Capital in the capacity of executive officers thereof unless within 120 days of the cessation of such employment, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably satisfactory to the Agent; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied at the expiration of any applicable cure period, the Agent, by written notice to the Servicer, the Trustee and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.26, terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. The Borrower shall pay all reasonable setSeries 2023-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer1 Co-Owner.
Appears in 1 contract
Sources: Series Purchase Agreement
Servicer Termination Events. (a) If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing on any dateoccur:
(ai) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Borrower, the Agent or any Lender as required by this Agreement on or before the date such payment, transfer, deposit, instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement any other Transaction Document and such failure is not cured or waived within shall continue for more than three (3) Business Days following Days; or
(ii) the occurrence thereof;of an Event of Default; or
(biii) except as otherwise provided in this Section 7.18, any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any other Transaction Document to which it is a party as Servicer that continues unremedied (if susceptible to remedy) for a period of 30 thirty (30) days (to the extent such failure is capable of being remedied) after the first to occur of (iA) the date on which written notice (which may be by email) of such failure requiring the same to be remedied shall have been given to the Servicer by the Agent, Administrative Agent or any Lender or the Borrower and (iiB) the date on which a Responsible Officer of the Servicer becomes aware thereof;; provided, however, that breaches of Sections 7.9(b) through (d), (g) through (i), (l), (n) through (w), 7.11 and 7.21 shall not have any cure period and shall constitute Servicer Termination Events upon the breach of any such covenant or agreement; or
(civ) the occurrence of an Insolvency Event shall occur with respect to the Servicer or any Affiliate of the Servicer;; or
(dv) the Servicer shall fail in or any material respect to service the Transferred Loans in accordance with the Credit and Collection Policy;
(e) the Servicer agrees to or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender without the prior written consent of the Agent and each Lender;
(f) any Change in Control of the Servicer is made without the prior written consent of the Agent;
(g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;
Affiliate thereof (i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement;
(k) any representation, warranty or certification made by the Servicer defaults in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certification, if capable of being remedied, shall continue for 30 days without being remedied or cured after the earlier of (i) receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certification;
(l) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer (individually or in the aggregate);
(m) any default by the Servicer in the making of any payment required to be made with respect to under any agreement for borrowed money in excess of $2,500,000 or any other material recourse debt or other obligation agreement to which it is a party and such default is not cured within the relevant cure period or (ii) fails to perform or observe any other condition or covenant, or any other event shall occur or condition exist, under any agreement or instrument relating to any such recourse debt Indebtedness or any other obligation shall be declared material agreement, if the effect of such failure, event or condition is to cause, or to permit the holder or holders of such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause such Indebtedness to be accelerated and become immediately due and payable or required (without regard to be prepaid (other than by scheduled payment) prior to its maturityany subordination terms with respect thereto); or
(nvi) [reserved]; or
(vii) any representation, warranty or certification made by the Servicer in this Agreement or any other Transaction Document or any amendment or modification hereof or thereof, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any other Transaction Document or any amendment or modification hereof or thereof, shall prove to have been incorrect in any material respect as of the time when the same shall have been made or deemed to have been made and the circumstances or conditions causing such representation, warranty or certification to be incorrect shall not have been remedied, eliminated or otherwise cured (to the extent capable of being remedied, eliminated or otherwise cured) for a period of thirty (30) days after the first to occur of (A) the date on which written notice (which may be by email) of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent or any Lender and (B) the date on which a Responsible Officer of the Servicer becomes aware thereof; or
(viii) any director, general partner, managing member, manager or senior officer of the Servicer is indicted for any felonious criminal offense related to the performance of its obligations under this Agreement or the other Transaction Documents or related to the Servicer’s business; or
(ix) one or more acts (including any failure(s) to act) by the Servicer or any Affiliate thereof occurs that constitutes fraud, willful misconduct or a material violation of Applicable Laws (including securities laws) (as determined in a final, non-appealable adjudication by a court of competent jurisdiction); or
(x) the Servicer’s business activities are suspended or terminated by a Governmental Authority; or
(xi) the rendering of one or more final judgments, decrees or orders by a court or arbitrator of competent jurisdiction for the payment of money in excess individually or in the aggregate of $2,500,000 against the Servicer or any Affiliate of the Servicer (exclusive of judgment amounts fully covered by insurance), and the aforementioned parties shall not have either (x) discharged or provided for the discharge of any such judgment, decree or order in accordance with its terms or (y) perfected a timely appeal of such judgment, decree or order and caused the execution of same to be stayed during the pendency of the appeal, in each case, within thirty (30) days from the date of entry thereof or enforcement proceedings are commenced upon such judgment, decree or order; or
(xii) any two of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ or ▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ shall cease fail to be employed by Kohlberg Capital provide active and material participation in the capacity of executive officers thereof unless within 120 days of the cessation of Servicer’s daily activities, including, but not limited to, general management, underwriting and credit approval process, and credit monitoring activities and such employment, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably Persons are not replaced with other individuals satisfactory to the AgentAdministrative Agent in its sole discretion within 90 days; then notwithstanding anything herein to the contrarythen, so long as and in any such Servicer Termination Events shall not have been remedied event, the Administrative Agent shall, at the expiration request, or may with the consent, of any applicable cure period, the AgentRequired Lenders, by written notice to the Servicer, the Trustee and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.267.19, either (i) terminate all of the rights and obligations of the Servicer as Servicer under this AgreementAgreement or (ii) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and simultaneously reappoint the Servicer for a period not to exceed one month (subject to renewal at the sole discretion of the Administrative Agent, acting at the direction of the Required Lenders), at the expiration of which appointment the Servicer’s rights and obligations hereunder shall automatically terminate without further action on the part of any party hereto. In addition to the foregoing, the Administrative Agent may request the assignment of any agreement for services utilized by the Servicer in servicing the Transferred Loans, and the Servicer shall use commercially reasonable efforts to promptly comply or cause the compliance with such request. The Borrower Servicer shall pay all reasonable set-up set‑up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
Appears in 1 contract
Servicer Termination Events. If any one Any of the following events acts or occurrences shall constitute a Servicer Termination Event by the Servicer under this Agreement, the assertion as to the occurrence of which may be made, and notice of which may be given, by any of the Issuer, the Indenture Trustee or the Controlling Party (other than in the case of clause (xi) below, the assertion of which may only be made by the Controlling Party), provided that in the case of any such assertion made and/or notice given by either the Indenture Trustee or the Controlling Party as to the existence of a “Servicer Termination Event (or the assertion and/or notice of an act or occurrence which, with the lapse of any time period specified below would constitute a Servicer Termination Event”), any waiver or consent, or purported waiver or consent, given by the Issuer to the Servicer (whether before or after any such assertion made and/or notice given by either the Indenture Trustee or the Controlling Party) with respect to such Servicer Termination Event (or with respect to any provision of this Agreement or the underlying factual circumstances relating thereto) shall occur and be continuing on any dateof no force or effect:
(ai) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice remit to the BorrowerLock-Box Accounts, the Agent or any Lender as required by this Agreement on or before the date such payment, transfer, deposit, instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement and such failure is not cured or waived within three Business Days following of the occurrence receipt thereof, any payments received by it in respect of the Franchise Assets;
(bii) any failure on by the part Servicer to provide to the Indenture Trustee a Monthly Servicer's Certificate or a Quarterly Servicer's Certificate within two Business Days of its due date, or with respect to any other required report, within 30 days of its due date;
(iii) a default by the Servicer in the due observance of the provisions of the Servicing Agreement regarding preservation of the Servicer's existence;
(iv) the default by the Servicer duly to observe or perform in any material respect the due performance and observance of any other covenants or agreements provision of the Servicer set forth in this Servicing Agreement or any other Transaction Document to which it is a party as Servicer that continues unremedied (if susceptible to remedy) and the continuation of such default uncured for a period of 30 days after it has been notified by the first Indenture Trustee of, or otherwise obtained knowledge of, such default, provided, however, as long as the Servicer is diligently attempting to cure such default, such cure period shall be extended by an additional period as may be required to cure such default but in no event by more than an additional 30 days;
(v) any representation, warranty or statement of the Servicer made in the Servicing Agreement or by the Servicer in its capacity as Servicer in any certificate, report or other writing delivered pursuant thereto will prove to be incorrect in any material respect as of the time when the same will have been made or deemed to have been made or as of any other date specified in this Agreement ("breach"), provided, that if any such breach is capable of being remedied within 30 days of the Servicer's knowledge of such breach or receipt of notice thereof, then a Servicer Termination Event shall occur under this clause (v) as a result of such breach if it is not cured in all material respects by the end of such 30-day period;
(ivi) the date on which written notice Servicer makes an assignment for the benefit of creditors or generally fails to pay its debts as such failure requiring debts become due;
(vii) the same Servicer's petition or application to be remedied shall have been given any tribunal for, or its consent to, the appointment of, or taking possession by, a trustee, receiver, custodian, liquidator or similar official of the Servicer, or of any substantial part of the assets of the Servicer, or the Servicer's commencement of a voluntary case under the Insolvency Law of the United States or any proceedings relating to the Servicer by under the Agent, Insolvency Law of any Lender or the Borrower and (ii) the date on which the Servicer becomes aware thereofother jurisdiction;
(cviii) an Insolvency Event shall occur with respect any petition or application referred to in clause (vi) is filed, or any proceedings referred to in clause (vi) are commenced, against the ServicerServicer and the Servicer by any act indicates its approval thereof, consent thereto or acquiescence therein, or any order, judgment or decree is entered appointing any such trustee, receiver, custodian, liquidator or similar official, or approving the petition in any such proceedings and such order, judgment or decree remains unstayed and in effect for more than 60 days;
(dix) any final, non-appealable order, judgment or decree is entered in any proceedings against the Servicer by a court of competent jurisdiction decreeing the dissolution of the Servicer and such order, judgment or decree remains unstayed and in effect for more than ten days;
(x) a final non-appealable judgment for an amount in excess of $10,000,000 (exclusive of any portion thereof which is insured) is rendered against the Servicer by a court of competent jurisdiction and is not paid or discharged within ten days;
(a) the Servicer shall fail in any material respect to service the Transferred Loans in accordance comply with the Credit Servicing Standard in the judgment of the Controlling Party, exercised in a reasonable manner and Collection Policy;
(eb) the Servicer agrees to or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy, in whole or in part, that such failure could reasonably be expected to have a material adverse effect upon Material Adverse Effect on the Loans or to be materially adverse to Trust Estate (not taking into account the interests benefits of the Lender without Policy), as determined in good faith by the prior written consent of the Agent and each LenderControlling Party;
(fxii) any Change in Control of the Servicer Debt Service Coverage Ratio is made without the prior written consent of the Agent;less than or equal to 1.10x; and
(gxiii) as an Event of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company Default under the 1940 Act;
(i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report Indenture has been declared and is required to be made or given, as the case may be, under the terms of this Agreement;
(k) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certification, if capable of being remedied, shall continue for 30 days without being remedied or cured after the earlier of (i) receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certification;
(l) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer (individually or in the aggregate);
(m) any default by the Servicer in the making of any payment required to be made with respect to any material recourse debt or other obligation to which it is a party and such default is not cured within the relevant cure period or any such recourse debt or other obligation shall be declared to be due and payable or required to be prepaid (other than by scheduled payment) prior to its maturity; or
(n) any two of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ shall cease to be employed by Kohlberg Capital in the capacity of executive officers thereof unless within 120 days of the cessation of such employment, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably satisfactory to the Agent; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied at the expiration of any applicable cure period, the Agent, by written notice to the Servicer, the Trustee and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.26, terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicercontinuing.
Appears in 1 contract
Servicer Termination Events. (a) If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing on any dateday:
(ai) any failure by the Servicer to make any payment, transfer or deposit or as required by this Agreement and such failure shall continue for two (2) Business Days;
(ii) any failure by the Servicer to give instructions or notice to the Borrower, any Managing Agent and/or the Administrative Agent or any Lender as required by this Agreement or to deliver any Required Reports hereunder on or before the date occurring two (2) Business Days after the date such paymentinstructions, transfer, deposit, instruction notice or notice report is required to be made or given, as the case may be, under the terms of this Agreement and such failure is not cured or waived within three Business Days following the occurrence thereofAgreement;
(biii) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any other Transaction Document to which it is a party as Servicer that continues unremedied (if susceptible to remedy) for a period of 30 fifteen (15) days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Lender Managing Agent or the Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof;
(c) an Insolvency Event shall occur with respect to the Servicer;
(d) the Servicer shall fail in any material respect to service the Transferred Loans in accordance with the Credit and Collection Policy;
(e) the Servicer agrees to or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender without the prior written consent of the Agent and each Lender;
(f) any Change in Control of the Servicer is made without the prior written consent of the Agent;
(g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;
(i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement;
(kiv) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been false or incorrect in any material respect when made, made and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certificationfailure, if capable of being remediedsusceptible to a cure, shall continue unremedied for 30 a period of fifteen (15) days without being remedied or cured after the earlier first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Managing Agent or the Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof;
(v) the Servicer shall fail to service the Transferred Loans in accordance with the Credit and Collection Policy;
(vi) an Insolvency Event shall occur with respect to the Servicer;
(vii) the Servicer agrees to materially alter the Credit and Collection Policy without the prior written consent of the Required Lenders;
(viii) any financial or asset information reasonably requested by the Administrative Agent or any Managing Agent as provided herein is not provided as requested within five (5) Business Days (or such longer period as the Administrative Agent or such Managing Agent may consent to) of the receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certificationrequest;
(lix) the rendering against the Servicer of one a final judgment, decree or more final judgments, decrees or orders order for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer U.S. $5,000,000 (individually or in the aggregate)) and the continuance of such judgment, decree or order unsatisfied and in effect for any period of thirty (30) consecutive days without a stay of execution;
(mx) any default by the Servicer in failure of the making of Performance Guarantor to make any payment required to be made due with respect to any material aggregate recourse debt or other obligation to which it is a party and such default is not cured within obligations with an aggregate principal amount exceeding U.S. $1,000,000 or the relevant cure period occurrence of any event or any condition that would permit acceleration of such recourse debt or other obligation obligations if such event or condition has not been waived;
(xi) any Guarantor Event of Default shall occur;
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or a material adverse change occurs with regard to the collectibility of the Transferred Loans, taken as a whole;
(xiii) any Change-in-Control of the Servicer is made without the prior written consent of the Borrower and the Administrative Agent, other than a Change-in-Control of the Servicer that is a result of transfer to a Permitted Holder;
(xiv) the Performance Guarantor shall fail to maintain a minimum Net Worth equal to the sum of (i) of $325,000,000 plus (ii) 50% of any equity and Subordinated Debt issued by the Performance Guarantor after the Restatement Date minus (iii) 50% of any equity and Subordinated Debt retired or redeemed by the Performance Guarantor after the Restatement Date; provided that, in no event shall the minimum Net Worth be less than $325,000,000;
(xv) the Performance Guarantor shall fail to satisfy the RIC/BDC Requirements;
(xvi) the Performance Guarantor shall fail to maintain “asset coverage” (as defined in and determined pursuant to Section 18 of the 1940 Act, as modified by Section 61 of the 1940 Act) of at least 150% (or such percentage as may be set forth in Section 18 of the 1940 Act, as modified by Section 61 of the 1940 Act); provided, that for purposes of testing compliance with this Section 7.18(a)(xvi) the impact of the election of ASC 825 or similar accounting guideline with respect to determining the fair value of the debt of the Performance Guarantor on a consolidated basis shall be declared excluded (for avoidance of doubt, the intent of this language is to cause the debt of the Performance Guarantor to be due and payable or required to be prepaid (other valued at par value rather than by scheduled payment) prior to its maturityfair value)); or
(nxvii) the Performance Guarantor shall pay any two cash dividends; provided that the Performance Guarantor shall be permitted to pay cash dividends if the Servicer shall have caused the Performance Guarantor to have delivered a certificate to the Administrative Agent, substantially in the form of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇Exhibit G hereto, ▇▇▇▇ ▇▇▇▇▇▇▇ at least ten (10) Business Days prior to the making of any such cash dividend to the effect that:
(A) the amount of the declared dividend has been determined in good faith by the Board of Directors of the Performance Guarantor on the basis of the most current financial projections of the Performance Guarantor then available for the Related Period (as defined in Exhibit G hereof);
(B) the amount of the declared dividend does not exceed the sum of (i) the net investment income and R. ▇▇▇ ▇▇▇▇▇▇▇ shall cease the net capital gain projected to be employed realized by Kohlberg Capital the Performance Guarantor for the Related Period based on the financial projections referred to in clause (A) above, and (ii) the capacity of executive officers thereof unless within 120 days amounts deemed by the Performance Guarantor to be considered as having been paid during the prior year in accordance with Section 855(a) of the cessation of such employment, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably satisfactory Code (together clauses (i) and (ii) comprising the “Projected Available Amount”); and
(C) to the Agentextent the declared dividend referred to in clause (B) above exceeds the sum of (i) the net investment income and the net capital gain actually realized by the Performance Guarantor for the Related Period, plus (ii) the amounts deemed by Performance Guarantor to be considered as having been paid during the prior year in accordance with Section 855(a) of the Code (the “Excess Payment”); then the proposed dividend to be declared by the Performance Guarantor for the immediately ensuing Related Period shall be reduced by any positive amount resulting from the following calculation: (x) the ensuing Related Period’s proposed declared dividend plus the Excess Payment minus (y) the ensuing Related Period’s Projected Available Amount. then, notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied at the expiration of any applicable cure period, the AgentAdministrative Agent may, or at the direction of the Required Lenders shall, by written notice to the Servicer, the Trustee Servicer and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.267.19, either (i) terminate all of the rights and obligations of the Servicer as Servicer under this AgreementAgreement or (ii) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and simultaneously reappoint the Servicer for a period not to exceed one month (subject to renewal at the sole discretion of the Administrative Agent, acting at the direction of the Required Lenders), at the expiration of which appointment the Servicer’s rights and obligations hereunder shall automatically terminate without further action on the part of any party hereto. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
Appears in 1 contract
Servicer Termination Events. (a) If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing on any dateoccur:
(ai) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Borrower, the Agent or any Lender as required by this Agreement on or before the date such payment, transfer, deposit, instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement any other Transaction Document and such failure is not cured or waived within shall continue for more than three (3) Business Days following Days; or
(ii) the occurrence thereof;of an Event of Default; or
(biii) except as otherwise provided in this Section 7.18, any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any other Transaction Document to which it is a party as Servicer that continues unremedied (if susceptible to remedy) for a period of 30 thirty (30) days (to the extent such failure is capable of being remedied) after the first to occur of (iA) the date on which written notice (which may be by email) of such failure requiring the same to be remedied shall have been given to the Servicer by the Agent, Administrative Agent or any Lender or the Borrower and (iiB) the date on which a Responsible Officer of the Servicer becomes aware thereof;; provided, however, that breaches of Sections 7.9(b) through (d), (g) through (i), (l), (n) through (w), 7.11 and 7.21 shall not have any cure period and shall constitute Servicer Termination Events upon the breach of any such covenant or agreement; or
(civ) the occurrence of an Insolvency Event shall occur with respect to the Servicer or any Affiliate of the Servicer;; or
(dv) the Servicer shall fail in or any material respect to service the Transferred Loans in accordance with the Credit and Collection Policy;
(e) the Servicer agrees to or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender without the prior written consent of the Agent and each Lender;
(f) any Change in Control of the Servicer is made without the prior written consent of the Agent;
(g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;
Affiliate thereof (i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement;
(k) any representation, warranty or certification made by the Servicer defaults in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certification, if capable of being remedied, shall continue for 30 days without being remedied or cured after the earlier of (i) receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certification;
(l) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer (individually or in the aggregate);
(m) any default by the Servicer in the making of any payment required to be made with respect to under any agreement for borrowed money in excess of $2,500,000 or any other material recourse debt or other obligation agreement to which it is a party and such default is not cured within the relevant cure period or (ii) fails to perform or observe any other condition or covenant, or any other event shall occur or condition exist, under any agreement or instrument relating to any such recourse debt Indebtedness or any other obligation shall be declared material agreement, if the effect of such failure, event or condition is to cause, or to permit the holder or holders of such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause such Indebtedness to be accelerated and become immediately due and payable or required (without regard to be prepaid (other than by scheduled payment) prior to its maturityany subordination terms with respect thereto); or
(nvi) [reserved]; or
(vii) any representation, warranty or certification made by the Servicer in this Agreement or any other Transaction Document or any amendment or modification hereof or thereof, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any other Transaction Document or any amendment or modification hereof or thereof, shall prove to have been incorrect in any material respect as of the time when the same shall have been made or deemed to have been made and the circumstances or conditions causing such representation, warranty or certification to be incorrect shall not have been remedied, eliminated or otherwise cured (to the extent capable of being remedied, eliminated or otherwise cured) for a period of thirty (30) days after the first to occur of (A) the date on which written notice (which may be by email) of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent or any Lender and (B) the date on which a Responsible Officer of the Servicer becomes aware thereof; or
(viii) any director, general partner, managing member, manager or senior officer of the Servicer is indicted for any felonious criminal offense related to the performance of its obligations under this Agreement or the other Transaction Documents or related to the Servicer’s business; or
(ix) one or more acts (including any failure(s) to act) by the Servicer or any Affiliate thereof occurs that constitutes fraud, willful misconduct or a material violation of Applicable Laws (including securities laws) (as determined in a final, non-appealable adjudication by a court of competent jurisdiction); or
(x) the Servicer’s business activities are suspended or terminated by a Governmental Authority; or
(xi) the rendering of one or more final judgments, decrees or orders by a court or arbitrator of competent jurisdiction for the payment of money in excess individually or in the aggregate of $2,500,000 against the Servicer or any Affiliate of the Servicer (exclusive of judgment amounts fully covered by insurance), and the aforementioned parties shall not have either (x) discharged or provided for the discharge of any such judgment, decree or order in accordance with its terms or (y) perfected a timely appeal of such judgment, decree or order and caused the execution of same to be stayed during the pendency of the appeal, in each case, within thirty (30) days from the date of entry thereof or enforcement proceedings are commenced upon such judgment, decree or order; or
(xii) any two of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇BrownMichael ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ or ▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ shall cease fail to be employed by Kohlberg Capital provide active and material participation in the capacity of executive officers thereof unless within 120 days of the cessation of Servicer’s daily activities, including, but not limited to, general management, underwriting and credit approval process, and credit monitoring activities and such employment, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably Persons are not replaced with other individuals satisfactory to the AgentAdministrative Agent in its sole discretion within 90 days; then notwithstanding anything herein to the contrarythen, so long as and in any such Servicer Termination Events shall not have been remedied event, the Administrative Agent shall, at the expiration request, or may with the consent, of any applicable cure period, the AgentRequired Lenders, by written notice to the Servicer, the Trustee and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.267.19, either (i) terminate all of the rights and obligations of the Servicer as Servicer under this AgreementAgreement or (ii) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and simultaneously reappoint the Servicer for a period not to exceed one month (subject to renewal at the sole discretion of the Administrative Agent, acting at the direction of the Required Lenders), at the expiration of which appointment the Servicer’s rights and obligations hereunder shall automatically terminate without further action on the part of any party hereto. In addition to the foregoing, the Administrative Agent may request the assignment of any agreement for services utilized by the Servicer in servicing the Transferred Loans, and the Servicer shall use commercially reasonable efforts to promptly comply or cause the compliance with such request. The Borrower Servicer shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
Appears in 1 contract
Servicer Termination Events. (a) If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing on any dateday:
(ai) any failure by the Servicer to make any payment, transfer or deposit or as required by this Agreement and such failure shall continue for two (2) Business Days;
(ii) any failure by the Servicer to give instructions or notice to the Borrower, any Managing Agent and/or the Administrative Agent or any Lender as required by this Agreement or to deliver any Required Reports hereunder on or before the date occurring two (2) Business Days after the date such paymentinstructions, transfer, deposit, instruction notice or notice report is required to be made or given, as the case may be, under the terms of this Agreement and such failure is not cured or waived within three Business Days following the occurrence thereofAgreement;
(biii) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any other Transaction Document to which it is a party as Servicer that continues unremedied (if susceptible to remedy) for a period of 30 fifteen (15) days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Lender Managing Agent or the Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof;
(c) an Insolvency Event shall occur with respect to the Servicer;
(d) the Servicer shall fail in any material respect to service the Transferred Loans in accordance with the Credit and Collection Policy;
(e) the Servicer agrees to or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender without the prior written consent of the Agent and each Lender;
(f) any Change in Control of the Servicer is made without the prior written consent of the Agent;
(g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;
(i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement;
(kiv) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been false or incorrect in any material respect when made, made and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certificationfailure, if capable of being remediedsusceptible to a cure, shall continue unremedied for 30 a period of fifteen (15) days without being remedied or cured after the earlier first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Managing Agent or the Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof;
(v) the Servicer shall fail to service the Transferred Loans in accordance with the Credit and Collection Policy;
(vi) an Insolvency Event shall occur with respect to the Servicer;
(vii) the Servicer agrees to materially alter the Credit and Collection Policy without the prior written consent of the Required Lenders;
(viii) any financial or asset information reasonably requested by the Administrative Agent or any Managing Agent as provided herein is not provided as requested within five (5) Business Days (or such longer period as the Administrative Agent or such Managing Agent may consent to) of the receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certificationrequest;
(lix) the rendering against the Servicer of one a final judgment, decree or more final judgments, decrees or orders order for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer U.S. $5,000,000 (individually or in the aggregate)) and the continuance of such judgment, decree or order unsatisfied and in effect for any period of thirty (30) consecutive days without a stay of execution;
(mx) any default by the Servicer in failure of the making of Performance Guarantor to make any payment required to be made due with respect to any material aggregate recourse debt or other obligation to which it is a party and such default is not cured within obligations with an aggregate principal amount exceeding U.S. $1,000,000 or the relevant cure period occurrence of any event or any condition that would permit acceleration of such recourse debt or other obligation shall be declared to be due and payable obligations if such event or required to be prepaid (other than by scheduled payment) prior to its maturity; orcondition has not been waived;
(nxi) any two Guarantor Event of Default shall occur;
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or a material adverse change occurs with regard to the collectibility of the Transferred Loans, taken as a whole;
(xiii) any Change-in-Control of the Servicer is made without the prior written consent of the Borrower and the Administrative Agent;
(xiv) the Performance Guarantor shall fail to maintain a minimum Net Worth equal to the sum of (i) of $325,000,000 plus (ii) 50% of any equity and Subordinated Debt issued by the Performance Guarantor after the Restatement Date minus (iii) 50% of any equity and Subordinated Debt retired or redeemed by the Performance Guarantor after the Restatement Date; provided that, in no event shall the minimum Net Worth be less than $325,000,000;
(xv) the Performance Guarantor shall fail to satisfy the RIC/BDC Requirements;
(xvi) the Performance Guarantor shall fail to maintain “asset coverage” (as defined in and determined pursuant to Section 18 of the 1940 Act, as modified by Section 61 of the ▇▇▇▇ ▇▇▇) of at least 150% (or such percentage as may be set forth in Section 18 of the 1940 Act, as modified by ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇ ▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ ); provided, that for purposes of testing compliance with this Section 7.18(a)(xvi) the impact of the election of ASC 825 or similar accounting guideline with respect to determining the fair value of the debt of the Performance Guarantor on a consolidated basis shall cease be excluded (for avoidance of doubt, the intent of this language is to cause the debt of the Performance Guarantor to be employed by Kohlberg Capital valued at par value rather than fair value)); or
(xvii) the Performance Guarantor shall pay any cash dividends; provided that the Performance Guarantor shall be permitted to pay cash dividends if the Servicer shall have caused the Performance Guarantor to have delivered a certificate to the Administrative Agent, substantially in the capacity form of executive officers thereof unless within 120 days Exhibit G hereto, at least ten (10) Business Days prior to the making of any such cash dividend to the effect that:
(A) the amount of the cessation declared dividend has been determined in good faith by the Board of such employmentDirectors of the Performance Guarantor on the basis of the most current financial projections of the Performance Guarantor then available for the Related Period (as defined in Exhibit G hereof);
(B) the amount of the declared dividend does not exceed the sum of (i) the net investment income and the net capital gain projected to be realized by the Performance Guarantor for the Related Period based on the financial projections referred to in clause (A) above, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably satisfactory and (ii) the amounts deemed by the Performance Guarantor to be considered as having been paid during the prior year in accordance with Section 855(a) of the Code (together clauses (i) and (ii) comprising the “Projected Available Amount”); and
(C) to the Agentextent the declared dividend referred to in clause (B) above exceeds the sum of (i) the net investment income and the net capital gain actually realized by the Performance Guarantor for the Related Period, plus (ii) the amounts deemed by Performance Guarantor to be considered as having been paid during the prior year in accordance with Section 855(a) of the Code (the “Excess Payment”); then the proposed dividend to be declared by the Performance Guarantor for the immediately ensuing Related Period shall be reduced by any positive amount resulting from the following calculation: (x) the ensuing Related Period’s proposed declared dividend plus the Excess Payment minus (y) the ensuing Related Period’s Projected Available Amount. then, notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied at the expiration of any applicable cure period, the AgentAdministrative Agent may, or at the direction of the Required Lenders shall, by written notice to the Servicer, the Trustee Servicer and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.267.19, either (i) terminate all of the rights and obligations of the Servicer as Servicer under this AgreementAgreement or (ii) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and simultaneously reappoint the Servicer for a period not to exceed one month (subject to renewal at the sole discretion of the Administrative Agent, acting at the direction of the Required Lenders), at the expiration of which appointment the Servicer’s rights and obligations hereunder shall automatically terminate without further action on the part of any party hereto. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
Appears in 1 contract
Servicer Termination Events. (a) If any one of the following events (a “"Servicer Termination Event”Events") shall occur and be continuing on any datecontinuing:
(ai) any The failure by the Servicer to make any payment, transfer payment or deposit or to give instructions or notice to the Borrower, the Agent or any Lender as required by this Agreement on or before the date such payment, transfer, deposit, instruction or notice is required to be made or given, as by the case may beServicer hereunder, under the terms Lock-Box Agreement or any other Operative Document and the continuance of this Agreement and such failure is for a period of two (2) Business Day after the date on which such payment or deposit was due and not cured or waived within three Business Days following the occurrence thereof;made; or
(bii) any The failure on the part of by the Servicer duly to observe or perform perform, in any material respect respect, any other covenants covenants, obligations or agreements of the Servicer (except those not applicable to Backup Servicer if its becomes Servicer hereunder) as set forth in this Agreement, which failure continues unremedied for a period of 30 days, after the date on which notice of such failure is delivered to the Servicer or the Servicer otherwise has actual knowledge of such fact; or
(iii) Any assignment by the Servicer of its duties or rights hereunder, under the Lock-Box Agreement, or any other Operative Document, except as specifically permitted hereunder or thereunder, or any attempt to make such an assignment; or
(iv) The entry against the Servicer or the Seller (if an Affiliate of the Servicer) of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs and the failure of such decree or order to be discharged or stayed for 60 days; or
(v) The Servicer or the Seller (if an Affiliate of the Servicer) shall voluntarily go into liquidation, consent to the appointment of a conservator or receiver or liquidator or similar person in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or the Seller or of or relating to all or substantially all of its property, or the Servicer or the Seller shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(vi) So long as the Seller is the Servicer, any failure of the Seller to repurchase any Receivable as required by Section 2.4; or
(vii) Any representation, warranty or statement of the Servicer (except those not applicable to Backup Servicer if it becomes Servicer hereunder) made in this Agreement or any certificate, report or other Transaction Document writing delivered pursuant hereto shall prove to which it is a party be incorrect in any material respect as Servicer that continues unremedied (if susceptible to remedy) for a period of the time when the same shall have been made and, within 30 days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied thereof shall have been given to the Servicer by the Agent, any Lender or the Borrower and (ii) Servicer otherwise has actual knowledge thereof, the date on circumstances or condition in respect of which the Servicer becomes aware thereof;such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured; or
(cviii) an Insolvency Event shall occur with respect to the Servicer;
(d) the Servicer shall fail in any material respect to service the Transferred Loans in accordance with the Credit and Collection Policy;
(e) the Servicer agrees to or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests of the Lender without the prior written consent of the Agent and each Lender;
(f) any Change in Control Either of the Servicer is made without or the prior written consent of the Agent;Depositor shall consolidate or merge with or into any other Person other than as contemplated in Section 5.2; or
(gix) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;
(i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any Any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five reports described in Article IV of this Agreement which remains uncured for three Business Days after the date on which such report failure commences; provided, however that the period within which Servicer shall deliver such reports shall be extended to such longer period as is required appropriate in the event of a Force Majeure Delay; provided further, that such longer period shall not exceed seven (7) Business Days; or
(x) Any default of a payment obligation under any other loan facility, debt instrument or any similar financing arrangement (such facility, instrument or financing arrangement to be made an obligation of $5,000,000 or given, as the case may be, under the terms of this Agreement;
(kgreater) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certification, if capable of being remedied, shall continue for 30 days without being remedied or cured after the earlier of (i) receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge or any "event of such incorrect representationdefault", warranty "early amortization event" or certification;
(l) the rendering against similar event under any indenture, facility or agreement to which the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer (individually or in the aggregate);
(m) any default by the Servicer in the making of any payment required to be made with respect to any material recourse debt or other obligation to which it is a party and the lapse of all relevant grace periods thereunder if the effect of the default is to cause, or permit the holders of such obligation to cause, such loan facility, debt instrument or any similar financing arrangement to become due and payable; or
(xi) There shall have occurred any material adverse change in the operations of the Servicer since December 31, 2001, or any other event shall have occurred which materially affects the Servicer's ability to either collect the Receivables or to perform under this Agreement; or
(xii) A default or breach shall occur under any other agreement, document or instrument to which the Servicer is a party or by which the Servicer or its property is bound that is not cured within any applicable grace period therefor, and such default or breach (i) involves the relevant cure period failure to make any payment when due in respect of any Indebtedness of the Servicer in excess of five percent (5%) of the Servicer's Tangible Net Worth, or (ii) causes, or permits any holder of such recourse debt Indebtedness or other obligation shall be declared a trustee or agent to be cause, Indebtedness or a portion thereof in excess of five percent (5%) of the Servicer's Tangible Net Worth to become due and payable or required to be prepaid (other than by scheduled payment) prior to its maturitystated maturity or prior to its regularly scheduled dates of payment, regardless of whether such default is waived, or such right is exercised, by such holder, trustee or agent; or
(nxiii) any two of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ shall cease the Servicer (excluding Backup Servicer if it becomes the Servicer) ceases to be employed by Kohlberg Capital in the capacity of executive officers thereof unless within 120 days own at least 100% of the cessation of Depositor; or
(xiv) Any failure by the Servicer to meet the financial covenants contained in Section 4.21; or
(xv) The Agent shall not have delivered a Servicer Extension Notice pursuant to Section 4.23.
(b) then, and in each and every such employment, Kohlberg Capital hires reputable experienced replacements for such officers, reasonably satisfactory to the Agent; then notwithstanding anything herein to the contrarycase, so long as any such a Servicer Termination Events Event shall not have been remedied at within the expiration of any applicable cure grace period, the AgentIndenture Trustee shall, at the direction of the Agent on behalf of the Majority Noteholders, by written notice then given in writing to the Servicer, the Trustee and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.26, terminate all of the rights and obligations of the Servicer as servicer under this Agreement. Any such notice to the Servicer shall also be given to the Seller, the Issuer, the Depositor and the Backup Servicer. On or after the receipt by the Servicer of such written notice, all authority and power of the Servicer under this Agreement, whether with respect to the Notes or the Receivables or otherwise, shall pass to and be vested in the Backup Servicer pursuant to and under this Section; and, without limitation, the Backup Servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of each Receivable and related documents or otherwise. The Borrower shall pay all reasonable set-up and conversion costs associated Servicer agrees to cooperate with the Backup Servicer in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer of servicing rights to the Successor Backup Servicer for the administration by it of all cash amounts that shall at the time be held by the Servicer and to be deposited by it in the Note Account, or that have been deposited by the Servicer in the Lock-Box Account or thereafter received by the Servicer with respect to the Receivables. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the Receivables Documents to the successor servicer and amending this Agreement to reflect such succession as servicer pursuant to this Section shall be paid by the Servicer (or if the Servicer is the Backup Servicer, the initial Servicer) upon presentation of reasonable documentation of such costs and expenses.
Appears in 1 contract
Servicer Termination Events. If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing on any datecontinuing:
(a) any failure by the Servicer Servicer: (x) to make any payment, transfer or deposit or to give instructions or notice to the Borrower, the Agent or Collection Account (A) any Lender as required by this Agreement on or before the date such payment, transfer, deposit, instruction or notice is amount required to be made deposited therein by the Servicer (other than any such failure resulting from an administrative or giventechnical error of the Servicer in the amount so deposited); or (B) within one (1) Business Day after the Servicer becomes aware that, as a result of an administrative or technical error of the case may beServicer, under any amount previously deposited by the terms Servicer to the Collection Account was less than the amount required to be deposited therein by the Servicer, the amount of this Agreement and such failure is not cured shortfall; or waived within three Business Days following (y) to deliver to the occurrence thereofCollateral Agent the Monthly Report on the related Determination Date;
(b) any failure on the part of the Servicer duly to observe or to perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement the Transaction Documents that results in a Material Adverse Effect or any other representation or warranty of the Servicer made in any Transaction Document or in any certificate or other writing delivered pursuant to any Transaction Document proving to have been incorrect in any material respect as of the time when the same shall have been made, which it is a party as Servicer that continues such failure or default, if capable of cure, shall continue unremedied (if susceptible to remedy) for a period of 30 forty-five (45) days (or a longer period, not in excess of ninety (90) days as may be reasonably necessary to remedy such default, if the default is capable of remedy within ninety (90) days or less, and the Servicer delivers an Officer's Certificate to the Deal Agent, the Backup Servicer and the Collateral Agent to the effect that it has commenced, or will promptly commence and diligently pursue, all reasonable efforts to remedy the default) after the first to occur of (ix) the date on which there shall have been given written notice of such failure or default, requiring the same to be remedied shall have been given remedied, (1) to the Servicer, by the Collateral Agent or the Deal Agent, or (2) to the Servicer by the Agent, any Lender Collateral Agent at the direction of the Deal Agent or (y) discovery of such failure or default by an officer of the Borrower and (ii) the date on which the Servicer becomes aware thereofServicer;
(c) an Insolvency Event shall occur with the entry of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, receiver, or liquidator for the Servicer or any of its subsidiaries in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings, or for the winding up or liquidation of its respective affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the entry of any decree or order for relief in respect to of the ServicerServicer or any of its subsidiaries under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, or similar law, whether now or hereafter in effect, which decree or order for relief continues unstayed and in effect for a period of 60 consecutive days;
(d) the consent by the Servicer shall fail or any of its subsidiaries to the appointment of a conservator or receiver or liquidator in any material respect insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings of or relating to service the Transferred Loans Servicer or any of its subsidiaries or relating to substantially all of its property; or the admission by the Servicer or any of its subsidiaries in accordance with writing of its inability to pay its debts generally as they become due, the Credit and Collection Policyfiling by the Servicer or any of its subsidiaries of a petition to take advantage of any applicable insolvency or reorganization statute, the making by the Servicer or any of its subsidiaries of an assignment for the benefit of its creditors, or the voluntary suspension by the Servicer or any of its subsidiaries of payment of its obligations;
(e) the Servicer agrees to or otherwise permits any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy, in whole or in part, that could reasonably be expected to have a material adverse effect upon the Loans or to be materially adverse to the interests delegation of the Lender without the prior written consent of the Agent and each LenderServicer's duties that is not permitted by Section 7.1;
(f) any Change in Control of financial information related to the Servicer Collateral reasonably requested by the Deal Agent, the Collateral Agent or any Lender as provided herein is made without the prior written consent of the Agentnot reasonably provided as requested;
(g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $200,000,000 plus seventy-five (75%) percent of any new equity issued after December 11, 2006;
(h) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act;
(i) the Servicer’s Leverage Ratio shall exceed 1.0:1.0;
(j) any failure by the Servicer to deliver any Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement;
(k) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, and such incorrect representation, warranty or certification can reasonably be expected to have a material adverse effect on the interests of any party hereto, and such incorrect representation, warranty or certification, if capable of being remedied, shall continue for 30 days without being remedied or cured after the earlier of (i) receipt by the Servicer of written notice with respect thereto from the Agent or the Trustee and (ii) notice thereof to the Servicer by an officer of the Servicer with actual knowledge of such incorrect representation, warranty or certification;
(l) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of 10% of the Tangible Net Worth of the Servicer (individually or United States $50,000,000 in the aggregate), and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than 60 consecutive days without a stay of execution;
(mh) any default by the Servicer shall fail to pay any principal of or premium or interest on any indebtedness in an aggregate outstanding principal amount of $50,000,000 or more (“Material Debt”), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the making of agreement or instrument relating to such Material Debt; or any payment required to be made with respect other default under any agreement or instrument relating to any material recourse debt Material Debt or any other obligation to which it is a party event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is not cured within to accelerate, or to permit the relevant cure period acceleration of, the maturity of such Material Debt; or any such recourse debt or other obligation Material Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled paymentrequired prepayment) prior to its maturitythe stated maturity thereof;
(i) a Termination Event shall have occurred and such Termination Event has not been waived by the Deal Agent;
(j) the Originator or Servicer, if Credit Acceptance is the Servicer, fails to pay when due (or no later than the next Payment Date after the Servicer becomes aware that such payment was not made) the Release Price in excess of $100,000; or
(nk) any two of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇ ▇▇▇▇▇▇▇ shall cease to be employed by Kohlberg Capital either (1) on a Consolidated (as defined in the capacity of executive officers thereof unless within 120 days Credit Agreement) basis, the Servicer fails to maintain, as of the cessation end of each fiscal period as shown in the most recent financial statement delivered by the Servicer pursuant to Section 5.1(k)(ii) and Section 5.1(k)(iii), as applicable, a Fixed Charge Coverage Ratio (as defined in the Credit Agreement) of not less than 2.0 to 1.0, or (2) on a Consolidated (as defined in the Credit Agreement) basis, the Servicer fails to maintain, as of the end of each fiscal period as shown in the most recent financial statement delivered by the Servicer pursuant to Section 5.1(k)(ii) and Section 5.1(k)(iii), as applicable, a ratio of Consolidated Funded Debt (as defined in the Credit Agreement) as of such employmentdate minus Unrestricted Cash (as defined in the Credit Agreement) as of such date (including in the calculation thereof, Kohlberg Capital hires reputable experienced replacements for such officerspurposes hereof, reasonably satisfactory all Funded Debt (as defined in the Credit Agreement) incurred by a Special Purpose Subsidiary (as defined in the Credit Agreement), whether or not included therein under GAAP) to the AgentServicer’s Consolidated Tangible Net Worth (as defined in the Credit Agreement) as of such date equal to or less than 5.60 to 1.0; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events Event shall not have been remedied at the expiration of remedied, within any applicable cure periodperiod prior to the date of the Servicer Termination Notice (defined below), the AgentDeal Agent may, or at the direction of the Required Lenders, by written notice to the Servicer, the Trustee and Servicer (with a copy to the Backup Servicer and the Collateral Agent) (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.26) shall, terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
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Sources: Loan and Security Agreement (Credit Acceptance Corp)