Servicer Termination Events. (a) If any one of the following events ("Servicer Termination Events") shall occur and be continuing: (i) The failure by the Servicer to make any payment or deposit required to be made by the Servicer hereunder, under the Lock-Box Agreement or any other Operative Document and the continuance of such failure for a period of two (2) Business Day after the date on which such payment or deposit was due and not made; or (ii) The failure by the Servicer duly to observe or perform, in any material respect, any other 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 writing delivered pursuant hereto shall prove to be incorrect in any material respect as of the time when the same shall have been made and, within 30 days after written notice thereof shall have been given to the Servicer or the Servicer otherwise has actual knowledge thereof, the circumstances or condition in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured; or (viii) Either of the Servicer or the Depositor shall consolidate or merge with or into any other Person other than as contemplated in Section 5.2; or (ix) Any failure by the Servicer to deliver the reports described in Article IV of this Agreement which remains uncured for three Business Days after the date on which such failure commences; provided, however that the period within which Servicer shall deliver such reports shall be extended to such longer period as is 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 an obligation of $5,000,000 or greater) of the Servicer or any "event of default", "early amortization event" or similar event under any indenture, facility or agreement to which the Servicer 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 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 Indebtedness or a trustee or agent to cause, Indebtedness or a portion thereof in excess of five percent (5%) of the Servicer's Tangible Net Worth to become due prior to its stated 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 (xiii) the Servicer (excluding Backup Servicer if it becomes the Servicer) ceases to own at least 100% of the 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 case, so long as a Servicer Termination Event shall not have been remedied within the applicable grace period, the Indenture Trustee shall, at the direction of the Agent on behalf of the Majority Noteholders, by notice then given in writing to the Servicer, 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 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 to the 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. (a) If any one of the following events ("a “Servicer Termination Events"Event”) shall occur and be continuingcontinuing on any day:
(i) The any failure by Servicer to deposit or cause to be deposited amounts into the Collection Account, the Reserve Account or the Committed Funding Account when required, or any failure by Servicer to make any payment or deposit of the required to be made by the Servicer hereunderpayments therefrom, under the Lock-Box Agreement or any other Operative Document and the continuance of such failure which continues unremedied for a period of two (2) Business Day after the date on which such payment or deposit was due and not madeDays; or
(ii) The any failure by on the part of the Servicer duly to observe or perform, perform in any material respect, respect any other covenants, obligations of the covenants or agreements on the part of the Servicer (except those not applicable Servicer, contained in any Transaction Document to Backup Servicer if its becomes Servicer hereunder) as set forth in this Agreementwhich it is a party, which failure continues unremedied for a period of 30 daysdays 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 other party hereto or to the Servicer (with copy to each other party hereto), by the Administrative Agent; or
(iii) any breach on the part of the Servicer of any representation or warranty contained in any Transaction Document to which it is a party that has a Material Adverse Effect on the interests of any of the parties hereto and which continues unremedied for a period of 30 days after the date on which notice of such failure is delivered to breach, requiring 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 same 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 liquidationremedied, 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 writing delivered pursuant hereto shall prove to be incorrect in any material respect as of the time when the same shall have been made and, within 30 days after written notice thereof shall have been given to the Servicer by any other party hereto or to the Servicer otherwise has actual knowledge thereof, (with a copy to each other party hereto) by the circumstances or condition in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise curedAdministrative Agent; or
(viiiiv) Either of an Insolvency Event shall occur with respect to the Servicer; or
(v) so long as the Servicer or the Depositor shall consolidate or merge with or into any other Person other than as contemplated in Section 5.2; or
(ix) Any failure by the Servicer to deliver the reports described in Article IV of this Agreement which remains uncured for three Business Days after the date on which such failure commences; provided, however that the period within which Servicer shall deliver such reports shall be extended to such longer period as Originator is 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 an obligation of $5,000,000 or greater) Affiliate of the Servicer or Borrower, any "“event of default", "early amortization event" or similar event ” by any such party occurs under any indenture, facility or agreement to which the Servicer is a party and the lapse of all relevant grace periods thereunder if the effect of the default is to causeTransaction Documents, 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 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 Indebtedness or a trustee or agent to cause, Indebtedness or a portion thereof in excess of five percent (5%) of the Servicer's Tangible Net Worth to become due prior to its stated 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
(xiii) the Servicer (excluding Backup Servicer if it becomes the Servicer) ceases to own at least 100% of the 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 casenotwithstanding anything herein to the contrary, so long as a any such Servicer Termination Event Events shall not have been remedied within at the expiration of any applicable grace cure period, the Indenture Trustee shallAdministrative Agent may, or at the direction of the Agent on behalf of the Majority NoteholdersRequired Lenders shall, by written notice then given in writing to the ServicerServicer and the Backup Servicer (a “Termination Notice”), subject to the provisions of Section 7.13, terminate all of the rights and obligations of the Servicer as servicer Servicer under this Agreement. Any such notice The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Servicer shall also be given to the Seller, the Issuer, the Depositor and the Backup Successor 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 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 to the 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
Sources: Credit Agreement (Capitalsource Inc)
Servicer Termination Events. (a) If any one of the following events ("Servicer Termination Events") shall occur and be continuing:
(ia) The Any failure by the Servicer to make deposit in the Collection Account any payment or deposit required to be made by the Servicer hereunder, under the Lock-Box terms of this Agreement or any other Operative Document and the continuance of such failure which continues unremedied for a period of two five (25) Business Day Days after the date on upon which written notice of such payment failure shall have been given to the Servicer by the Indenture Trustee or deposit was due the Seller, or to the Servicer, the Seller and not madethe Indenture Trustee by the Majority Noteholders; or
(iib) The Any failure by on the part of the Servicer duly to observe or perform, perform in any material respect, respect any other covenants, obligations covenants or agreements of the Servicer (except those not applicable to Backup Servicer if its becomes Servicer hereunder) as set forth in the Notes or in this Agreement, which failure (A) materially and adversely affects the interests of Noteholders and (B) continues unremedied for a period of 30 days, sixty (60) days after the date on which written notice of such failure is delivered failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or the Servicer otherwise has actual knowledge of such factSeller, or to the Servicer, the Seller and the Indenture Trustee by the Majority Noteholders; 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
(ivc) 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 affairs, and the failure continuance of any such decree or order to be discharged or stayed unstayed and in effect for a period of 60 consecutive days; or
(vd) The consent by the Servicer or the Seller (if an Affiliate of the Servicer) shall voluntarily go into liquidation, consent to the appointment of a conservator or trustee, conservator, receiver or liquidator or similar person in any insolvency, conservatorship, receivership, 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 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 writing delivered pursuant hereto shall prove to be incorrect in any material respect as of the time when the same shall have been made and, within 30 days after written notice thereof shall have been given to the Servicer or the Servicer otherwise has actual knowledge thereof, the circumstances or condition in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured; or
(viii) Either of the Servicer or the Depositor shall consolidate or merge with or into any other Person other than as contemplated in Section 5.2; or
(ix) Any failure by the Servicer to deliver the reports described in Article IV of this Agreement which remains uncured for three Business Days after the date on which such failure commences; provided, however that the period within which Servicer shall deliver such reports shall be extended to such longer period as is 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 an obligation of $5,000,000 or greater) of the Servicer or any "event of default", "early amortization event" or similar event under any indenture, facility or agreement to which the Servicer 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 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 Indebtedness or a trustee or agent to cause, Indebtedness or a portion thereof in excess of five percent (5%) of the Servicer's Tangible Net Worth to become due prior to its stated 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
(xiii) the Servicer (excluding Backup Servicer if it becomes the Servicer) ceases to own at least 100% of the 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 case, so long as a Servicer Termination Event shall not have been remedied within by the applicable grace periodServicer, either the Indenture Trustee or the Seller may, and at the direction of the Majority Noteholders, the Indenture Trustee shall, at the direction of the Agent on behalf of the Majority Noteholders, by notice then given in writing to the Servicer, the Seller and the Indenture Trustee, as applicable, terminate all of the rights and obligations of the Servicer as servicer under this Agreement; PROVIDED, HOWEVER, that the responsibilities and duties of the initial Servicer with respect to the purchase of Mortgage Loans pursuant to Sections 2.02, 2.04(c) and 3.01 shall not terminate. Any such notice to the Servicer shall also be given to the Seller, the Issuer, the Depositor and the Backup Servicereach Rating Agency. On or after the receipt by the Servicer of such written notice, all authority and power of of, and all benefits accruing to, the Servicer under this Agreement, whether with respect to the Notes or the Receivables Mortgage Loans or otherwise, shall pass to and be vested in the Backup Indenture Trustee or, if a successor Servicer has been appointed under Section 7.02, such successor Servicer pursuant to and under this SectionSection 7.01; and, without limitation, the Backup Servicer 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 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 Mortgage Loan and related documents documents, or otherwise. The Servicer agrees to cooperate with the Backup Servicer Indenture Trustee in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Backup Servicer Indenture Trustee for the administration by it of all cash amounts that shall at the time be held by the terminated Servicer and to be deposited by it in the Note Collection Account, or that have been deposited by the terminated Servicer in the Lock-Box Collection Account or thereafter received by the terminated Servicer with respect to the Receivables. All reasonable costs Mortgage Loans, and expenses (including attorneys' fees) incurred in connection with transferring the Receivables Documents recordation of Assignments of Mortgages to the Owner Trustee if MERS is not the mortgagee of a Mortgage Loan or otherwise in accordance with Section 7.02(c). The Indenture Trustee or other successor servicer and amending this Agreement shall not be responsible for delays attributable to reflect such succession as servicer pursuant the Servicer's failure to this Section shall be paid deliver information, defects in the information provided by the Servicer or other circumstances beyond the control of the Indenture Trustee or other successor servicer. Notwithstanding the foregoing, a delay in or failure of performance under Section 7.01(a) for a period of five (5) Business Days or under Section 7.01(b) for a period of sixty (60) days, shall not constitute a Servicer Termination Event if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer is and such delay or failure was caused by an act of God, acts of declared or undeclared war, public disorder, terrorism, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Backup ServicerServicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement, and the Servicer shall provide the Indenture Trustee, the initial Servicer) upon presentation of reasonable documentation Seller and the Noteholders with an Officer's Certificate giving prompt notice of such costs failure or delay by it, together with a description of its efforts to so perform its obligations. The Servicer shall immediately notify the Indenture Trustee and expenseseach Rating Agency in writing of any Servicer Termination Events.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Compass Asset Acceptance Co)
Servicer Termination Events. (a) If any one Any of the following events ("acts or occurrences shall constitute a Servicer Termination Events") shall occur Event under this Agreement, the assertion as to the occurrence of which may be made, and notice of which may be continuinggiven, by either the Issuer or the Indenture Trustee:
(i) The any failure (x) by the Servicer to remit to the Lock-Box Account within two (2) Business Days of its actual knowledge of its receipt thereof, any payments required to be deposited into the Lock-Box Account received by it in respect of the Serviced Assets, (y) of the Servicer to make any payment due under the Servicing Agreement within two (2) Business Days of when such payment was required to be made hereunder or deposit (z) by IHOP Inc. (for so long as it is the Servicer) to make any payment due under any Transaction Document to which it is a party within two (2) Business Days of when such payment was required to be made by it thereunder;
(ii) the default by the Servicer hereunder, under in delivering the Lock-Box Agreement Monthly Noteholders’ Statement pursuant to Section 3.1(b) or any other Operative Document report pursuant to Section 3.1 and Section 3.2 on its due date and the continuance continuation of such failure default uncured for a period of two five (25) Business Day days after it has been notified by the date on which Issuer or an Insurer, or otherwise obtained knowledge of such payment or deposit was due and not made; ordefault;
(iiiii) The failure by the Servicer duly to observe or perform, in any material respect, any other covenants, obligations or agreements Cumulative Debt Service Coverage Ratio falls below the greatest of the Servicer (except those not STE Series DSCR Thresholds applicable to Backup Servicer if its becomes Servicer hereunder) each Outstanding Series of Notes (as set forth in the relevant Series Supplements);
(iv) the default by (x) the Servicer in the due performance or observance of any provision or covenant under this Agreement, or (y) IHOP Inc. (for so long as it is the Servicer) in the due performance or observance of any provision or covenant under any Transaction Document to which failure continues unremedied it is a party but, in the case of any such default by IHOP Inc., only to the extent that such default could reasonably be expected to have a Material Adverse Effect, and any such default remains uncured for a period of 30 daysfifteen (15) days after it has been notified by the Issuer, after any Series Controlling Party, the date on which notice Indenture Trustee or any Insurer or otherwise obtained knowledge of such failure is delivered to default; provided, however, that as long as the Servicer or IHOP Inc., as applicable, is diligently attempting to cure such default (only to the Servicer otherwise has actual knowledge extent it is curable), 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 fifteen (15) days; and provided, further, that any default related to the transfer of such fact; or
(iii) Any assignment a defective asset pursuant to the terms of this Agreement or an Asset Transfer Agreement shall be deemed cured for purposes hereof upon payment in full 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 applicable transferor of the Servicer) of a decree liquidated damages amount and other amounts specified in and in accordance with this Agreement 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; orAsset Transfer Agreement;
(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 by the Servicer in any certificate, report or other writing delivered pursuant hereto shall prove or thereto that is not qualified by materiality or a Material Adverse Effect proves to be incorrect in any material respect respect, or any such representation, warranty or statement that is qualified by materiality or Material Adverse Effect proves to be incorrect, in each case as of the time when the same shall was made or deemed to have been made andor as of any other date specified in this Agreement; provided that if any such breach is capable of being remedied within fifteen (15) days of the Servicer’s receipt of notice thereof, within 30 days after written notice thereof then a Servicer Termination Event shall have been given to only occur under this clause (v) as a result of such breach if it is not cured by the end of such fifteen (15) day period;
(vi) for so long as it is the Servicer (a) any representation, warranty or the Servicer otherwise has actual knowledge thereofstatement of IHOP Inc. made in any Transaction Document or in any certificate, the circumstances report or condition other writing delivered pursuant thereto that is not qualified by materiality or a Material Adverse Effect proves to be incorrect in respect of which any material respect, or (b) any such representation, warranty or statement that is qualified by materiality or Material Adverse Effect proves to be incorrect, in each case as of the time when the same was incorrect shall not made or deemed to have been eliminated made or otherwise curedas of any other date specified in such document or agreement and such event could reasonably be expected to have a Material Adverse Effect; orprovided that if any such breach is capable of being remedied within fifteen (15) days of IHOP Inc.’s knowledge of such breach or receipt of notice thereof and the Servicer diligently attempts to remedy such breach during such 15 day period, then a Servicer Termination Event shall only occur under this clause (vi) as a result of such breach if it is not cured in all material respects by the end of such 15 day period;
(vii) an Event of Bankruptcy with respect to the Servicer shall have occurred;
(viii) Either an Event of Default under the Servicer or the Depositor shall consolidate or merge with or into any other Person other than as contemplated in Section 5.2; orIndenture has occurred and is continuing;
(ix) Any failure by a final non appealable judgment for an amount, which when aggregated with the amount of other such judgments, exceeds $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 30 days;
(A) any Person other than IHOP Corp. shall become the owner of more than fifty percent (50%) of the voting stock in IHOP Inc. or (B) IHOP Corp. merges with another entity unaffiliated with IHOP Corp. and IHOP Corp. is not the surviving entity unless (1) such surviving entity has executed an assumption agreement pursuant to deliver which it agrees to assume all of the reports described in Article IV obligations of this Agreement which remains uncured for three Business Days after IHOP Corp. under the date on which such failure commences; provided, however that Transaction Documents and (2) the period within which Servicer shall deliver such reports shall be extended Rating Agency Condition is satisfied with respect to such longer period as is appropriate in the any then Outstanding Series of Notes;
(xi) an 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 or default occurs with respect to any other loan facility, debt instrument or any similar financing arrangement (such facility, instrument or financing arrangement to be an obligation of $5,000,000 or greater) Debt of the Servicer or any "affiliate thereof, other than any Securitization Entity or IHOP Holdings, in an aggregate principal amount greater than $50,000,000 and such default or event of default", "early amortization event" or similar event under any indenture, facility or agreement to which the Servicer is a party and the lapse of all relevant grace periods thereunder if the effect of the default is to causenot cured within 60 days of notice or knowledge, or permit the holders payment 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 Debt of any material adverse change in the operations of the Servicer since December 31, 2001, or any Affiliate thereof, other than any Securitization Entity or IHOP Holdings, of an aggregate principal amount greater than $50,000,000 is accelerated following a default or event shall have occurred which materially affects of default under the Servicer's ability to either collect the Receivables or to perform under this Agreementterms of such Debt; 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 failure of IHOP Corp. (on a consolidated basis) to make any payment when due in respect maintain an IHOP Corp. Consolidated Leverage Ratio of any Indebtedness equal to or less than the least of the Servicer in excess of five percent (5%) of the Servicer's Tangible Net Worth, or (ii) causes, or permits Series IHOP Corp. Consolidated Ratio Thresholds applicable with respect to any holder of such Indebtedness or a trustee or agent to cause, Indebtedness or a portion thereof in excess of five percent (5%) of the Servicer's Tangible Net Worth to become due prior to its stated 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
(xiii) the Servicer (excluding Backup Servicer if it becomes the Servicer) ceases to own at least 100% of the Depositor; or
(xiv) Outstanding Notes. 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 case, so long as a Servicer Termination Event shall not have been remedied within be deemed to continue until such time as the applicable grace periodAggregate Controlling Party has consented to cease such continuation; provided, the Indenture Trustee shallhowever, at the direction of the Agent on behalf of the Majority Noteholders, by notice then given in writing to the Servicer, terminate all of the rights and obligations of the Servicer as servicer under this Agreement. Any that 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 consent by the Servicer of such written noticeAggregate Controlling Party shall not be construed to negate or supersede each Series Controlling Party’s rights, all authority and power of the Servicer under this Agreementif any, whether to dissent or otherwise determine individually with respect to any other matters under 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 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 to the 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 expensesTransaction Documents.
Appears in 1 contract
Sources: Servicing Agreement (Ihop Corp)
Servicer Termination Events. For purposes of this Agreement, each of the following shall constitute a "Servicer Termination Event":
(a) If any one of the following events ("Servicer Termination Events") shall occur and be continuing:
(i) The failure by the Servicer to make deposit into the Lockbox Account or the Collection Account any proceeds or payment or deposit required to be made by the Servicer hereunder, so delivered under the Lock-Box terms of this Agreement or any other Operative Document and the continuance of such failure that continues unremedied for a period of two Business Days (2) one Business Day with respect to payments of Purchase Amounts) after written notice is received by the date on which Servicer or after discovery of such payment or deposit was due and not made; orfailure by a Responsible Officer of the Servicer;
(iib) The failure by the Servicer to deliver to the Owner Trustee, the Indenture Trustee, the Seller and (so long as the Note Insurer is the Controlling Party) the Note 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, perform any other covenants, obligations covenants 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 (i) materially and adversely affects the rights of the Securityholders (determined without regard to the availability of funds under the Policy) or of the Note Insurer (unless the Note Insurer is no longer the Controlling Party) and (ii) continues unremedied for a period of 30 days, days after knowledge thereof by the Servicer or after the date on which written notice of such failure is delivered to requiring 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 same 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 writing delivered pursuant hereto shall prove to be incorrect in any material respect as of the time when the same shall have been made and, within 30 days after written notice thereof remedied shall have been given to the Servicer by any of the Owner Trustee, the Indenture Trustee or the Servicer otherwise has actual knowledge thereofNote Insurer (or, if a Note Insurer Default shall have occurred and be continuing, Noteholders evidencing not less than 25% of the circumstances or condition in respect Outstanding Amounts of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured; orthe Notes);
(viiid) Either the occurrence of an Insolvency Event with respect to the Servicer or the Depositor shall consolidate or merge with or into any other Person other than as contemplated in Section 5.2; orSeller;
(ixe) Any so long as the Note Insurer is the Controlling Party, any failure by the Servicer Note Insurer to deliver the reports described in Article IV of this Agreement which remains uncured for three Business Days after the date on which such failure commences; provided, however that the period within which Servicer shall deliver such reports shall be extended to such longer period as is 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 an obligation of $5,000,000 or greater) of the Servicer or any "event of default", "early amortization event" or similar event under any indenture, facility or agreement to which the Servicer 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 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 Indebtedness or a trustee or agent to cause, Indebtedness or a portion thereof in excess of five percent (5%) of the Servicer's Tangible Net Worth to become due prior to its stated 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
(xiii) the Servicer (excluding Backup Servicer if it becomes the Servicer) ceases to own at least 100% of the 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 4.23.4.14; provided that no such Servicer Extension Notice shall be required from and after the date on which the Notes have been paid in full and all amounts owed to the Note Insurer under the Insurance Agreement have been paid in full; or
(bf) then, and in each and every such case, so long as a Servicer Termination the Note Insurer is the Controlling Party, an Insurance Agreement Event of Default shall not have been remedied within the applicable grace period, the Indenture Trustee shall, at the direction of the Agent on behalf of the Majority Noteholders, by notice then given in writing to the Servicer, 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 occurred 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 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 to the 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 expensescontinuing.
Appears in 1 contract
Sources: Sale and Servicing Agreement (First Merchants Acceptance Corp)
Servicer Termination Events. (a) If any one of the following events ("Servicer Termination Events") shall occur and be continuing:
(i) The failure by the Servicer to make deposit in the Note Account any payment or deposit required to be made by the Servicer hereunder, it under the Lock-Box terms of this Agreement or any other Operative Document and the continuance of such failure which continues unremedied for a period of two (2) one Business Day after the date on upon which such payment or deposit was due and not is required to be made; or
(ii) The failure by the Servicer duly to observe or perform, in any material respect, any other 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 written notice of such failure is delivered failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or to the Servicer otherwise has actual knowledge and the Indenture Trustee by any holder of such facta Note evidencing an aggregate undivided interest in the Notes of a Percentage Interest of at least 25%; 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
(viv) 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
(viv) 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 writing delivered pursuant hereto shall prove to be incorrect in any material respect as of the time when the same shall have been made and, within 30 days after written notice thereof shall have been given to the Servicer or the Servicer otherwise has actual knowledge thereof, the circumstances or condition in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured; or
(viiivi) Either of the Servicer or the Depositor shall consolidate or merge with or into any other Person other than as contemplated in Section 5.2.; or
(ix) Any failure by the Servicer to deliver the reports described in Article IV of this Agreement which remains uncured for three Business Days after the date on which such failure commences; provided, however that the period within which Servicer shall deliver such reports shall be extended to such longer period as is appropriate in the event of a Force Majeure Delay; provided further, that such longer period shall not exceed seven (7) Business Days; or
(xvii) Any default of a payment or performance obligation under any other loan facility, debt instrument or any similar financing arrangement (such facility, instrument or financing arrangement to be an obligation of $5,000,000 10,000,000 or greater) of the Servicer or any "event of default", "early amortization event" or similar event under any indenture, facility or agreement to which the Servicer 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
(xiviii) At any time after September 30, 2001 OHC shall not have in full force and effect a working capital borrowing facility with a commitment termination date after the Final Addition Date and in an amount greater than or equal to $75,000,000 and in form and substance satisfactory to the Class A Note Agent or OHC shall default in the performance of its covenants (other than its covenant to pay principal and interest) under such working capital borrowing facility; or
(ix) There shall have occurred any material adverse change in the operations of the Servicer since December 31September 30, 20012000, 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 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 Indebtedness or a trustee or agent to cause, Indebtedness or a portion thereof in excess of five percent (5%) of the Servicer's Tangible Net Worth to become due prior to its stated 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
(xiii) the Servicer (excluding Backup Servicer if it becomes the Servicer) ceases to own at least 100% of the Depositor; or
(xiv) Any failure by the Servicer to meet the financial covenants contained in Section 4.21; or
(xvx) The Agent Indenture Trustee shall not have delivered a Servicer Extension Notice pursuant to Section 4.234.19.
(b) then, and in each and every such case, so long as a Servicer Termination Event shall not have been remedied within the applicable grace period, the Indenture Trustee shall, at the direction of the Agent on behalf of the Majority Noteholders, by notice then given in writing to the Servicer, 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 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 to the 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 Note 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 Files 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. Any of the following acts or occurrences shall constitute a "Servicer Termination Event" under this Servicing Agreement:
(a) If any one of the following events ("Servicer Termination Events") shall occur and be continuing:
(i) The failure by the Servicer to make any payment payment, transfer or deposit to the Collateral Agent on the date such payment, transfer or deposit is required to be made by the Servicer hereunder, under the Lock-Box Agreement or any other Operative Document and the continuance of such failure for a period of two (2) Business Day after the date on which such payment or deposit was due and not made; or;
(iib) The any failure by the Servicer or Back-up Servicer to provide any notices to the Collateral Agent and the Surety Bond Provider pursuant to this Servicing Agreement relating to the transfer or calculation of funds;
(c) failure on the part of the Servicer or Back-up Servicer to duly to observe or perform, perform in any material respect, respect any other covenants, obligations covenants or agreements of the Servicer (except those not applicable to Backup Servicer if its becomes Servicer hereunder) as or Back-up Servicer, respectively, set forth in this Servicing Agreement, which failure continues unremedied for a period of 30 days, after the date on which notice of such failure is delivered to ; or the Servicer or the Back-up Servicer otherwise has actual knowledge of such fact; orshall assign its respective duties hereunder (except as expressly permitted herein);
(iiid) Any assignment any representation, warranty or certification made by the Servicer of its duties or rights hereunder, under the LockBack-Box up Servicer or any successor to either in this Servicing Agreement, or any other Operative Documentcertificate delivered pursuant to this Servicing Agreement, except as specifically permitted hereunder shall prove to have been incorrect when made, which has a material adverse effect on the Noteholder or thereunder, or any attempt to make such an assignment; orthe Surety Bond Provider;
(ive) 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 Back-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 Back-up Servicer, respectively, or of or relating to all or substantially all of their respective properties; or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its propertyaffairs, shall have been entered against the Servicer or Back-up Servicer or Successor Servicer or Successor Back-up Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer or the Seller Back-up Servicer or any successor to either shall admit in writing its inability to pay its debts generally as they become due, file or have filed against it a petition or commence an action to take advantage of any applicable insolvency or reorganization statute, make an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(f) the Servicer or the Back-up Servicer or any successor to either shall fail to be an Eligible Servicer as determined by the Surety Bond Provider;
(g) the Servicer makes any material changes to its Collection Policy with respect to the Receivables without the consent of the Surety Bond Provider, which consent shall not be unreasonably withheld; or
(vih) So long a Termination Event (as defined in the Seller Security Agreement) occurs which has not been waived by the Surety Bond Provider or, if a Surety Default has occurred and 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 writing delivered pursuant hereto shall prove to be incorrect in any material respect as of the time when the same shall have been made and, within 30 days after written notice thereof shall have been given to the Servicer or the Servicer otherwise has actual knowledge thereofcontinuing, the circumstances or condition in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured; or
(viii) Either of the Servicer or the Depositor shall consolidate or merge with or into any other Person other than as contemplated in Section 5.2; or
(ix) Any failure by the Servicer to deliver the reports described in Article IV of this Agreement which remains uncured for three Business Days after the date on which such failure commences; provided, however that the period within which Servicer shall deliver such reports shall be extended to such longer period as is 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 an obligation of $5,000,000 or greater) of the Servicer or any "event of default", "early amortization event" or similar event under any indenture, facility or agreement to which the Servicer 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 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 Indebtedness or a trustee or agent to cause, Indebtedness or a portion thereof in excess of five percent (5%) of the Servicer's Tangible Net Worth to become due prior to its stated 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
(xiii) the Servicer (excluding Backup Servicer if it becomes the Servicer) ceases to own at least 100% of the 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 4.23Noteholder.
(b) then, and in each and every such case, so long as a Servicer Termination Event shall not have been remedied within the applicable grace period, the Indenture Trustee shall, at the direction of the Agent on behalf of the Majority Noteholders, by notice then given in writing to the Servicer, 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 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 to the 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
Sources: Servicing Agreement (First Investors Financial Services Group Inc)
Servicer Termination Events. (a) If The occurrence and continuance of any one of the following events ("shall constitute a “Servicer Termination Events") shall occur and be continuingEvent” hereunder:
(ia) The any failure by the Servicer to (i) deliver any Collections or (ii) make any payment payment, transfer or deposit deposit, in each case as required to be made by the Servicer hereunder, under the Lock-Box this Agreement or any other Operative Servicer Basic Document and the continuance which failure shall continue unremedied for two Business Days after (A) receipt of written notice of such failure by the Servicer from the Administrative Agent, any Lender, a Responsible Officer of the Collateral Custodian or a Responsible Officer of the Backup Servicer or (B) discovery of such failure by a Responsible Officer of the Servicer;
(b) any failure by the Servicer to deliver to the Administrative Agent, each Lender, the Collateral Custodian or the Backup Servicer a Monthly Report and a Monthly Loan Tape when required that shall continue unremedied for two Business Days after (i) receipt of written notice of such failure by the Servicer from the Administrative Agent, any Lender, a period Responsible Officer of two (2) Business Day after the date on which such payment Collateral Custodian or deposit was due and not made; or
a Responsible Officer of the Backup Servicer or (ii) The discovery of such failure by a Responsible Officer of the Servicer;
(c) any merger or consolidation of the Servicer in breach of Section 7.15;
(d) any failure by the Servicer duly to observe or perform, perform in any material respect, respect any other covenants, obligations covenant or agreements agreement of the Servicer (except those not applicable to Backup Servicer if its becomes Servicer hereunder) as set forth in this Agreementany Servicer Basic Document, which failure continues shall remain unremedied for a period of 30 days, days after the date on which earlier of (i) receipt of written 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 from the Administrative Agent, any Lender, a Responsible Officer of its duties the Collateral Custodian or rights hereunder, under a Responsible Officer of 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 Backup Servicer or the Seller (if an Affiliate ii) discovery of such failure by a Responsible Officer 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;
(ve) 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 certification made by the Servicer (except those not applicable to Backup in any Servicer if it becomes Servicer hereunder) made Basic Document or in this Agreement or any other certificate, information or report or other writing delivered pursuant hereto to any Servicer Basic Document shall prove to be have been false or incorrect in any material respect when made or deemed made or delivered, and which remains unremedied for 30 days after the earlier of (i) receipt of written notice of such failure by the Servicer from the Administrative Agent, any Lender, a Responsible Officer of the Collateral Custodian or a Responsible Officer of the Backup Servicer or (ii) discovery of such failure by a Responsible Officer of the Servicer;
(f) an Insolvency Event shall occur with respect to the Servicer;
(g) so long as Regional Management is the Servicer, as of the time when the same last day of any Collection Period, (i) its Tangible Net Worth is less than $100,000,000 or (ii) its Debt to Tangible Net Worth exceeds 3.0 to 1.0;
(h) a Termination Event shall have been made and, within 30 days after written notice thereof shall have been given to the Servicer or the Servicer otherwise has actual knowledge thereof, the circumstances or condition in respect of which such representation, warranty or statement was incorrect occurred and shall not have been eliminated or otherwise curedwaived; or
(viiii) Either of the Servicer or the Depositor shall consolidate or merge with or into any other Person other than as contemplated in Section 5.2; or
(ix) Any failure by the Servicer to deliver observe any covenant, condition or agreement under Section 6.04(h). During the reports described in Article IV continuance of this Agreement which remains uncured for three Business Days after the date on which such failure commences; provided, however that the period within which Servicer shall deliver such reports shall be extended to such longer period as is 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 an obligation of $5,000,000 or greater) of the Servicer or any "event of default"foregoing, "early amortization event" or similar event under any indenture, facility or agreement notwithstanding anything herein to which the Servicer 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 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 Indebtedness or a trustee or agent to cause, Indebtedness or a portion thereof in excess of five percent (5%) of the Servicer's Tangible Net Worth to become due prior to its stated 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
(xiii) the Servicer (excluding Backup Servicer if it becomes the Servicer) ceases to own at least 100% of the 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 casecontrary, so long as a any such Servicer Termination Event shall not have been remedied within any applicable cure period or waived in writing by the applicable grace periodAdministrative Agent and each Lender, the Indenture Trustee shall, at the direction of the Agent on behalf of the Majority NoteholdersAdministrative Agent, by written notice then given in writing to the Servicer (with a copy to the Collateral Custodian, the Account Bank and the Backup Servicer) (each, a “Servicer Termination Notice”), may 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 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 to the 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. (a) If any one of the following events ("a “Servicer Termination Events"Event”) shall occur and be continuingcontinuing and remains unremedied for more than thirty (30) days (or such other amount of time as specifically listed below) after knowledge by or written notice to the Servicer:
(ia) The any failure by the Servicer to make any payment payment, transfer or deposit as required to be made by the Servicer hereunder, under the Lock-Box this Agreement or any other Operative Document and Transaction Document, other than any such failure resulting from an administrative or technical error of the continuance Servicer in the amount so paid, transferred or deposited; provided that within one (1) Business Day after the Servicer receives notice or becomes aware that, as a result of an administrative or technical error of the Servicer, any amount previously paid, transferred or deposited by the Servicer was less than the amount required to be paid, transferred or deposited by the Servicer, the Servicer pays, transfers or deposits the amount of such shortfall;
(b) any failure for a period of by the Servicer (only with respect to Credit Acceptance) to give instructions or notice to the Deal Agent as required by this Agreement or any other Transaction Document, or to deliver any required Monthly Report or other required reports hereunder on or before the date occurring two (2) Business Day Days after the date on which such payment instruction, notice or deposit was due and not made; orreport is required to be made or given, as the case may be, under the terms of this Agreement or the relevant Transaction Document;
(iic) The any failure by on the part of the Servicer to duly to observe or perform, in any material respect, any perform other covenants, obligations covenants or agreements of the Servicer set forth in this Agreement or the other Transaction Documents (except those not applicable to Backup Servicer if its becomes Servicer hereunder) other than as set forth in this Agreementclauses (a) or (b) above) to which the Servicer is a party, which such failure results in a Material Adverse Effect and continues unremedied for a period of 30 forty-five (45) days;
(d) any material representation, warranty or certification made by the Servicer (only with respect to Credit Acceptance) in any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect when made, which continues unremedied for more than 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 to the effect that it has commenced, or will promptly commence and diligently pursue, all reasonable efforts to remedy the default);
(e) an Insolvency Event shall occur with respect to the Servicer;
(f) any delegation of the Servicer’s duties that is not permitted by Section 7.1;
(g) any information related to the Collateral reasonably requested by the Deal Agent, the Collateral Agent or the Lender as provided herein is not reasonably provided as requested;
(h) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of United States $50,000,000 (in the event SST is Successor Servicer, the amount shall be $10,000,000) 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;
(i) 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 (in the event SST is Successor Servicer, the amount shall be $10,000,000) or more (“Material Debt”), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the date on which notice applicable grace period, if any, specified in the agreement or instrument relating to such Material Debt; or any other default under any agreement or instrument relating to any Material Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such failure default or event is delivered to accelerate, or to permit the acceleration of, the maturity of such Material Debt; or any such Material Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the Servicer stated maturity thereof;
(j) any change in the control of Credit Acceptance that takes the form of either a merger or consolidation in which Credit Acceptance is not the Servicer otherwise surviving entity;
(k) a Material Adverse Effect shall have occurred;
(l) if Credit Acceptance is Servicer, a Termination Event shall have occurred and such Termination Event has actual knowledge of such factnot been waived by the Deal Agent; or
(iiim) Any assignment either (1) 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 Fixed Charge Coverage Ratio (as defined in the Credit Agreement) of its duties or rights hereunder, under the Lock-Box Agreementnot less than 2.0 to 1.0, or any other Operative Document(2) on a Consolidated (as defined in the Credit Agreement) basis, 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 trusteefails to maintain, 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 writing delivered pursuant hereto shall prove to be incorrect in any material respect as of the time when end of each fiscal period as shown in the same shall have been made and, within 30 days after written notice thereof shall have been given to the Servicer or the Servicer otherwise has actual knowledge thereof, the circumstances or condition in respect of which such representation, warranty or most recent financial statement was incorrect shall not have been eliminated or otherwise cured; or
(viii) Either of the Servicer or the Depositor shall consolidate or merge with or into any other Person other than as contemplated in Section 5.2; or
(ix) Any failure delivered by the Servicer pursuant to deliver the reports described in Article IV Section 5.1(k)(ii) and Section 5.1(k)(iii), as applicable, a ratio of this Agreement which remains uncured for three Business Days after the date on which such failure commences; provided, however that the period within which Servicer shall deliver such reports shall be extended to such longer period Consolidated Funded Debt (as is appropriate defined in the event of a Force Majeure Delay; provided further, that such longer period shall not exceed seven (7Credit Agreement) 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 an obligation of $5,000,000 or greater) of the Servicer or any "event of default", "early amortization event" or similar event under any indenture, facility or agreement to which the Servicer 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 as of such obligation to cause, such loan facility, debt instrument or any similar financing arrangement to become due and payable; or
date minus Unrestricted Cash (xi) There shall have occurred any material adverse change as defined in the operations Credit Agreement) as of such date (including in the Servicer since December 31calculation thereof, 2001for purposes hereof, all Funded Debt (as defined in the Credit Agreement) incurred by a Special Purpose Subsidiary (as defined in the Credit Agreement), whether or any other event shall have occurred which materially affects not included therein under GAAP) to 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 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 Indebtedness or a trustee or agent to cause, Indebtedness or a portion thereof in excess of five percent (5%) of the Servicer's ’s Consolidated Tangible Net Worth (as defined in the Credit Agreement) as of such date equal to become due prior or less than 5.60 to its stated maturity or prior 1.0; then notwithstanding anything herein 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
(xiii) the Servicer (excluding Backup Servicer if it becomes the Servicer) ceases to own at least 100% of the 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 casecontrary, so long as a any such Servicer Termination Event shall not have been remedied within any applicable cure period prior to the applicable grace perioddelivery of the Servicer Termination Notice (defined below), the Indenture Trustee shallDeal Agent may, at the direction of the Agent on behalf of the Majority NoteholdersLender, by written notice then given in writing to the Servicer (with a copy to the Backup Servicer) (a “Servicer Termination Notice”), 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 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 to the 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
Sources: Loan and Security Agreement (Credit Acceptance Corp)
Servicer Termination Events. (a) If any one of the following events ("Servicer Termination Events") shall occur and be continuing:
(i) The Any failure by the Servicer or, for so long as LBAC is the Servicer, the Transferor, to make any deliver to the Trust Collateral Agent for payment to Noteholders or Certificateholder or deposit in the Spread Account any proceeds or payment required to be made by the Servicer hereunder, so delivered under the Lock-Box terms of the Notes, the Certificate, the Purchase Agreement, any Transfer Agreement or any other Operative Document and the continuance this Agreement (including deposits of such failure Purchase Amounts) that shall continue unremedied for a period of two Business Days after written notice is received by the Servicer from the Trust Collateral Agent or the Note Insurer or after discovery of such failure by the Servicer (2) but in no event later than the five Business Day Days after the date on which Servicer is required to make such payment delivery or deposit was due and not madedeposit); or
(ii) The failure Servicer's Certificate required by Section 4.9 shall not have been delivered to the Trust Collateral Agent and the Note Insurer within one Business Day of the date such Servicer's Certificate is required to be delivered; or the statement required by Section 4.10 or the report required by Section 4.11 shall not have been delivered within five (5) days after the date such statement or report, as the case may be, is required to be delivered; or
(iii) Failure on the part of the Servicer to observe its covenants and agreements set forth in Section 8.3 or, for so long as LBAC is the Servicer, failure on the part of the Transferor to observe its covenants and agreements set forth in Section 7.3; or
(iv) Failure on the part of LBAC, the Servicer or, for so long as LBAC is the Servicer, the Transferor, as the case may be, duly to observe or perform, to perform in any material respect, respect any other covenants, obligations covenants or agreements of LBAC, the Servicer Servicer, the Custodian or the Transferor (except those not applicable to Backup Servicer if its becomes Servicer hereunderas the case may be) as set forth in the Notes, the Certificate, the Purchase Agreement, any Transfer Agreement or in this Agreement, which failure continues shall continue unremedied for a period of 30 days, days after the date on which written notice of such failure is delivered requiring the same to be remedied, shall have been given (1) to LBAC, the Servicer or the Servicer otherwise has actual knowledge of such fact; or
Transferor (iii) Any assignment as the case may be), by the Servicer Note Insurer or the Trust Collateral Agent, or, if a Note Insurer Event of its duties or rights hereunderDefault has occurred and is continuing by 25% of the Noteholders, under the Lock-Box Agreement(2) to LBAC, 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 Transferor (if an Affiliate as the case may be), and to the Trust Collateral Agent and the Note Insurer by the Class A Noteholders evidencing not less than 25% 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 daysClass A Note Balance; or
(v) The Servicer entry of a decree or order for relief by a court or regulatory authority having jurisdiction in respect of LBAC or the Seller Servicer (if an Affiliate or, so long as LBAC is the Servicer, the Transferor, or any of the Servicer's other Affiliates, if the Servicer's ability to service the Receivables is adversely affected thereby) shall voluntarily go into liquidationin an involuntary case under the federal bankruptcy laws, as now or hereafter in effect, or another present or future, federal or state, bankruptcy, insolvency or similar law, or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of LBAC, the Servicer (or the Transferor or any other Affiliate of LBAC, if applicable) or of any substantial part of their respective properties or ordering the winding up or liquidation of the affairs of LBAC or the Servicer (or the Transferor or any other Affiliate of LBAC, if applicable) or the commencement of an involuntary case under the federal or state bankruptcy, insolvency or similar laws, as now or hereafter in effect, or another present or future, federal or state bankruptcy, insolvency or similar law with respect to LBAC or the Servicer (or the Transferor or any other Affiliate of LBAC, if applicable) and such case is not dismissed within 60 days; or
(vi) The commencement by LBAC or the Servicer (or, so long as LBAC is the Servicer, the Transferor or any of the Servicer's other Affiliates, if the Servicer's ability to service the Receivables is adversely affected thereby) of a voluntary case under the federal bankruptcy laws, as now or hereafter in effect, or any other present or future, federal or state, bankruptcy, insolvency or similar law, or the consent by LBAC or the Servicer (or the Transferor or any other Affiliate of LBAC, if applicable) to the appointment of or taking possession by a conservator receiver, liquidator, assignee, trustee, custodian, sequestrator or receiver or liquidator or other similar person in any insolvency, readjustment official 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, LBAC or the Servicer (or the Seller shall admit in writing its inability to pay its debts generally as they become dueTransferor or any other Affiliate of LBAC, file a petition to take advantage if applicable) or of any applicable insolvency substantial part of its property or reorganization statutethe making by LBAC or the Servicer (or the Transferor or any other Affiliate of LBAC, make if applicable) of an assignment for the benefit of its creditors or voluntarily suspend payment the failure by LBAC or the Servicer (or the Transferor or any other Affiliate of LBAC, if applicable) generally to pay its obligations; or
debts as such debts become due or the taking of corporate action by LBAC or the Servicer (vior the Transferor or any other Affiliate of LBAC, if applicable) So long as the Seller is the Servicer, in furtherance of any failure of the Seller to repurchase any Receivable as required by Section 2.4foregoing; or
(vii) Any representation, warranty or statement of LBAC or the Servicer (except those not applicable to Backup Servicer if it becomes Servicer hereunder) or, for so long as LBAC is the Servicer, the Transferor, made in this Agreement and, with respect to LBAC and the Transferor, the Purchase Agreement or any Transfer Agreement, or in each case any certificate, report or other writing delivered pursuant hereto shall prove to be incorrect in any material respect as of the time when the same shall have been made (excluding, however, any representation or warranty set forth in Section 3.03(b) of the Purchase Agreement or Section 4 of the related Transfer Agreement), and the incorrectness of such representation, warranty or statement has a material adverse effect on the Issuer and, within 30 days after written notice thereof shall have been given (1) to LBAC, the Servicer or the Transferor (as the case may be) by the Trust Collateral Agent or the Note Insurer or, if a Note Insurer Event of Default has occurred and is continuing by 25% of the Noteholders, (2) to LBAC, the Servicer otherwise has actual knowledge thereofor the Transferor (as the case may be), and to the Trust Collateral Agent and the Note Insurer by the Class A Noteholders evidencing not less than 25% of the Class A Note Balance, the circumstances or condition in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured; or
(viii) Either The occurrence of the Servicer or the Depositor shall consolidate or merge with or into any other Person other than as contemplated in Section 5.2; oran Insurance Agreement Event of Default;
(ix) Any failure by A claim is made under the Servicer to deliver the reports described in Article IV of this Agreement which remains uncured for three Business Days after the date on which such failure commences; provided, however that the period within which Servicer shall deliver such reports shall be extended to such longer period as is appropriate in the event of a Force Majeure Delay; provided further, that such longer period shall not exceed seven (7) Business DaysPolicy; or
(x) Any default of So long as a payment obligation under any other loan facility, debt instrument or any similar financing arrangement (such facility, instrument or financing arrangement to be an obligation of $5,000,000 or greater) of the Servicer or any "event of default", "early amortization event" or similar event under any indenture, facility or agreement to which the Servicer 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 Note Insurer Default shall not have occurred any material adverse change in and be continuing, 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 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 Indebtedness or a trustee or agent to cause, Indebtedness or a portion thereof in excess of five percent (5%) of the Servicer's Tangible Net Worth to become due prior to its stated 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
(xiii) the Servicer (excluding Backup Servicer if it becomes the Servicer) ceases to own at least 100% of the Depositor; or
(xiv) Any failure by the Servicer to meet the financial covenants contained in Section 4.21; or
(xv) The Agent Note Insurer shall not have delivered a Servicer Extension Notice pursuant to Section 4.23.
(b) 4.13; then, and in each and every such case, so long as a Servicer Termination Event shall not have been remedied within the applicable grace periodremedied; provided, (i) no Note Insurer Default shall have occurred and be continuing, the Indenture Trustee shallNote Insurer in its sole and absolute discretion, or (ii) if a Note Insurer Default shall have occurred and be continuing, then either the Trust Collateral Agent or the Trust Collateral Agent acting at the written direction of the Agent on behalf of the Majority NoteholdersMajorityholders, by notice then given in writing to the ServicerServicer (and to the Trust Collateral Agent if given by the Note Insurer or by the Noteholders) or by the Note Insurer's failure to deliver a Servicer Extension Notice pursuant to Section 4.13, may terminate all of the rights and obligations of the Servicer as servicer under this Agreement. Any such notice The Servicer shall be entitled to its pro rata share of the Servicing Fee for the number of days in the Collection Period prior to the Servicer shall also be given to the Seller, the Issuer, the Depositor and the Backup Servicereffective date of its termination. 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 Notes, Certificate or the Receivables or otherwise, shall without further action, pass to and be vested in (i) the Backup Back-up Servicer pursuant or (ii) such successor Servicer as may be appointed under Section 9.2; provided, however, that the successor Servicer shall have no liability with respect to and under this Sectionany obligation which was required to be performed by the predecessor Servicer prior to the date the successor Servicer becomes the Servicer or any claim of a third party (including a Noteholder) based on any alleged action or inaction of the predecessor Servicer as Servicer; and, without limitation, the Backup Servicer Trust Collateral Agent is hereby authorized and empowered to execute and deliver, on behalf of the predecessor 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 the Receivables and related documents documents, or otherwise. Notwithstanding anything contained in this Agreement to the contrary, ▇▇▇▇▇ Fargo as successor Servicer is authorized to accept and rely on all of the accounting, records (including computer records) and work of the prior Servicer relating to the Notes (collectively, the "Predecessor Servicer Work Product") without any audit or other examination thereof, and ▇▇▇▇▇ Fargo shall have no duty, responsibility, obligation or liability for the acts and omissions of the prior Servicer. In the event that ▇▇▇▇▇ Fargo becomes aware of any error, inaccuracy, omission or incorrect or non-standard practice or procedure (collectively, "Errors") exist in any Predecessor Servicer Work Product and such Errors make it materially more difficult to service or should cause or materially contribute to ▇▇▇▇▇ Fargo making or continuing any Errors (collectively, "Continued Errors"), ▇▇▇▇▇ Fargo shall, with the prior consent of the Note Insurer, use its best efforts to reconstruct and reconcile such data as are commercially reasonable to correct such Errors and Continued Errors and to prevent future Continued Errors. ▇▇▇▇▇ Fargo shall be entitled to recover its costs thereby expended in accordance with Section 5.6(c)(ix) hereof. The predecessor Servicer agrees to shall cooperate with the Backup successor Servicer and the Trust Collateral Agent in effecting the termination of the responsibilities and rights of the predecessor Servicer hereunderunder this Agreement, including, without limitation, including the transfer to the Backup successor Servicer for the administration by it of all cash amounts that shall at the time be held or should have been held by the predecessor Servicer and to be deposited by it in the Note Accountfor deposit, or that have been deposited by the Servicer in the Lock-Box Account or shall thereafter be received by the Servicer with respect to a Receivable and the Receivablesdelivery to the successor Servicer of all files and records concerning the Receivables and a computer tape in readable form containing all information necessary to enable the successor Servicer to service the Receivables and the other property of the Issuer. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the Receivables Documents Receivable Files to the successor servicer Servicer and amending this Agreement to reflect such succession as servicer Servicer pursuant to this Section 9.1 shall be paid by the predecessor Servicer (or if the Servicer is the Backup Servicer, the initial Servicer) upon presentation of reasonable documentation of such costs and expenses. In addition, any successor Servicer shall be entitled to payment from the immediate predecessor Servicer for reasonable transition expenses incurred in connection with acting as successor Servicer, and in connection with system conversion costs, an aggregate amount not to exceed for such conversion costs of $100,000, and to the extent not so paid, such payment shall be made pursuant to Section 5.6(c)(ix) hereof. Upon receipt of written notice of the occurrence of a Servicer Termination Event, the Trust Collateral Agent shall give notice thereof to the Rating Agencies, the Issuer and the Transferor. The predecessor Servicer shall grant the Transferor, the Trust Collateral Agent, the Back-up Servicer and the Note Insurer reasonable access to the predecessor Servicer's premises, computer files, personnel, records and equipment at the predecessor Servicer's expense. If requested by the Note Insurer, the Back-up Servicer or successor Servicer shall terminate any arrangements relating to (i) the Lock-Box Account with the Lock-Box Bank, (ii) the Lock-Box or (iii) the Lock-Box Agreement, and direct the Obligors to make all payments under the Receivables directly to the Servicer at the predecessor Servicer's expense (in which event the successor Servicer shall process such payments directly, or, through a Lock-Box Account with a Lock-Box Bank at the direction of the Note Insurer). The Trust Collateral Agent shall send copies of all notices given pursuant to this Section 9.1 to the Note Insurer so long as no Note Insurer Default shall have occurred and be continuing, to the Noteholders if a Note Insurer Default shall have occurred and be continuing and to the Demand Note Provider so long as no Demand Note Event shall have occurred and be continuing.
(b) In the event that the Custodian is acting as Servicer and the Servicer is terminated pursuant to this Section 9.1, the Custodian may also be terminated in accordance with the terms of the Custodial Agreement.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Long Beach Acceptance Auto Receivables Trust 2005-A)
Servicer Termination Events. (1) The occurrence of any one or more of the following shall be a “servicer termination event” in relation to the Series 2023-1 Ownership Interest:
(a) If any one of the following events ("Servicer Termination Events") shall occur and be continuing:
(i) The failure by the Servicer fails to make any payment distribution, transfer or deposit required to be made by in respect of the Servicer hereunder, under the LockSeries 2023-Box Agreement or any other Operative Document 1 Ownership Interest and the continuance of such failure continues for a period of two five (25) Business Day after the date on which such payment Days, or deposit was due and not made; or
(ii) The failure by the Servicer duly fails to observe or performperform any covenant or agreement contained in the Pooling and Servicing Agreement or this Series 2023-1 Purchase Agreement, in any if such failure has a material respect, any other covenants, obligations or agreements adverse effect on the ability of the Servicer (except those not applicable Series 2023-1 Co-Owner to Backup Servicer if satisfy its becomes Servicer hereunder) as set forth in this Agreement, which failure obligations to holders of the Series 2023-1 Senior Notes or the Series 2023-1 Subordinated Notes and continues unremedied for a period of 30 daysthirty (30) Business Days after delivery by the Custodian or the Issuer Trustee of written notice thereof to the Servicer;
(b) any 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 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 to be incorrect or unremedied for a period of thirty (30) Business Days after delivery by the date on which Custodian or the Issuer Trustee of written notice thereof to the Servicer;
(c) except where the terms of such failure Section 9.5 of the Pooling and Servicing Agreement have been complied with, there is delivered to 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 Servicer otherwise has actual knowledge laws of such fact; or
(iii) Any assignment by the Servicer of its duties any jurisdiction relating to bankruptcy, insolvency, reorganization, arrangement, compromise or rights hereunder, under the Lock-Box Agreementwinding up, 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 one or more of a trustee, conservatorreceiver, receiver or liquidator in any insolvencyand manager, conservatorshipcustodian, 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 other person with similar person in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating powers with respect 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 unless such proceeding or step is being contested in good faith by the Seller to repurchase any Receivable as required by Section 2.4; orServicer;
(viid) Any representation, warranty or statement of the Servicer (ceases to carry on a revolving credit card business except those not applicable to Backup Servicer if it becomes Servicer hereunder) made in this Agreement or any certificate, report or other writing delivered pursuant hereto shall prove to be incorrect in any material respect as the course of the time when the same shall have been made and, within 30 days after written notice thereof shall have been given to the Servicer or the Servicer otherwise has actual knowledge thereof, the circumstances or condition carrying out a transaction in respect of which such representation, warranty the conditions of Section 9.4 or statement was incorrect shall not Section 9.5 of the Pooling and Servicing Agreement are observed and performed; and
(e) if CT Bank is the Servicer and a Standby Servicer and an Independent Investment Advisor have been eliminated or otherwise cured; orappointed and have agreed to act under Section 9.2, the Independent Investment Advisor notifies the Series 2023-1 Co-Owner, the Administrator and CT Bank in writing that:
(viiii) Either of the Servicer or the Depositor shall consolidate or merge with or into any other Person other than as contemplated in Section 5.2; or
(ix) Any failure by the Servicer to deliver the reports described in Article IV of this Agreement which remains uncured for three Business Days after the date on which such failure commences; providedits reasonable opinion, however that the period within which Servicer shall deliver such reports shall be extended to such longer period as is appropriate in the event of there has been 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 an obligation of $5,000,000 or greater) of the Servicer or any "event of default", "early amortization event" or similar event under any indenture, facility or agreement to which the Servicer 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 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 Servicer since December 31date on which the Independent Investment Advisor became aware of such material adverse change, 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; orand
(xiiii) A default or breach shall occur under any other agreementas a result of such material adverse change, document or instrument to which 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 is a party or by which the Servicer or its property is bound that is not cured within any applicable grace period thereforStandby Servicer, and such default or breach (i) involves accordingly, the failure to make any payment when due Independent Investment Advisor recommends in writing that CT Bank be so replaced as Servicer; provided, however, that no servicer termination event in respect of any Indebtedness the Series 2023-1 Ownership Interest will be considered to have occurred if, on or before the fifth (5th) Business Day occurring after such recommendation, the holders of the Servicer in excess of five percent (5%) of Series 2023-1 Notes provide the Servicer's Tangible Net Worth, or (ii) causes, or permits any holder of Issuer Trustee with a Noteholder Direction to the effect that such Indebtedness or a trustee or agent to cause, Indebtedness or a portion thereof in excess of five percent (5%) of the Servicer's Tangible Net Worth to become due prior to its stated 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
(xiii) the Servicer (excluding Backup Servicer if it becomes the Servicer) ceases to own at least 100% of the Depositor; or
(xiv) Any failure by the Servicer to meet the financial covenants contained in Section 4.21; or
(xv) The Agent event shall not have delivered give rise to a Servicer Extension Notice pursuant to Section 4.23servicer termination event for these purposes.
(b2) then, and A servicer termination event in each and every such case, so long as a Servicer Termination Event shall not have been remedied within the applicable grace period, the Indenture Trustee shall, at the direction respect of the Agent on behalf of the Majority Noteholders, by notice then given in writing to the Servicer, terminate all of the rights and obligations of the Servicer as servicer under this Agreement. Any such notice to the Servicer shall also Series 2023-1 Ownership Interest may be given to the Seller, the Issuer, the Depositor and the Backup Servicer. On or after the receipt waived 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 attorneySeries 2023-in1 Co-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 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 to the 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 expensesOwner.
Appears in 1 contract
Sources: Series Purchase Agreement
Servicer Termination Events. (a) If any one of the following events ("Servicer Termination Events") shall occur and be continuing:
(i) The failure by the Servicer to make any payment or deposit required to be made by the Servicer hereunder, under the Lock-Box Agreement or any other Operative Document and the continuance of such failure for a period of two (2) Business Day after the date on which such payment or deposit was due and not made; or
(ii) The failure by the Servicer duly to observe or perform, in any material respect, any other 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 its becomes Servicer hereunder) made in this Agreement or any certificate, report or other writing delivered pursuant hereto shall prove to be incorrect in any material respect as of the time when the same shall have been made and, within 30 days after written notice thereof shall have been given to the Servicer or the Servicer otherwise has actual knowledge thereof, the circumstances or condition in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured; or
(viii) Either of the Servicer or the Depositor shall consolidate or merge with or into any other Person other than as contemplated in Section 5.2; or
(ix) Any failure by the Servicer to deliver the reports described in Article IV of this Agreement which remains uncured for three Business Days after the date on which such failure commences; provided, however that the period within which Servicer shall deliver such reports shall be extended to such longer period as is 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 an obligation of $5,000,000 or greater) of the Servicer or any "event of default", "early amortization event" or similar event under any indenture, facility or agreement to which the Servicer 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 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 Indebtedness or a trustee or agent to cause, Indebtedness or a portion thereof in excess of five percent (5%) of the Servicer's Tangible Net Worth to become due prior to its stated 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
(xiii) the Servicer (excluding Backup Servicer if it becomes the Servicer) ceases to own at least 100% of the 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 case, so long as a Servicer Termination Event shall not have been remedied within the applicable grace period, the Indenture Trustee shall, at the direction of the Agent on behalf of the Majority Noteholders, by notice then given in writing to the Servicer, 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 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 to the 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. (a) If any The occurrence or existence of one or more of the following events ("or facts shall constitute a “Servicer Termination Events") shall occur and be continuingEvent”:
(ia) The any failure by of the Servicer to make any payment pay or deposit required any amount to be made paid or deposited by it under this Agreement (including any failure to remit Free Cash Flow to the Servicer hereunderCollection Account in accordance with Section 6.4) and any failure of Servicer, under the Lockor compromise of Servicer’s ability to, collect payments from Obligors (including, without limitation, software, hardware or other problems with Servicer’s platform for collecting payments, but excluding non-Box Agreement or any other Operative Document and the continuance of such failure for a period of two (2) Business Day after the date on which such payment or deposit was due and not made; or
(ii) The failure payments by the Servicer duly to observe or perform, in any material respect, any other covenants, obligations or agreements fault of the Servicer (except those not applicable to Backup Servicer if its becomes Servicer hereunder) as set forth in this AgreementObligors), which and such failure continues unremedied for a period of 30 days, 3 Business Days after the earlier of the date on which the Servicer receives notice thereof from the Agent and the date the Servicer becomes aware thereof;
(b) any withdrawal from or other use of funds on deposit in the Collection Account by the Servicer, other than as expressly permitted hereunder;
(c) any failure on the part of the Servicer to duly perform or observe any material terms, conditions, covenants or agreements of the Servicer set forth in this Agreement, and if such failure is capable of being remedied, such failure continues unremedied for a period of 10 Business Days after the earlier of the date on which the Servicer receives notice thereof from the Agent and the date the Servicer becomes aware thereof;
(d) any representation or warranty made or deemed to have been made by the Servicer (or any of its officers) in or pursuant to this Agreement or any document or instrument delivered pursuant hereto proves to have been false, misleading or incorrect in any material respect when made and, if capable of being cured, has not been cured within 3 Business Days after the earlier of the date notice thereof has been delivered to the Servicer or and the date the Servicer otherwise has actual knowledge of such fact; orbecomes aware thereof;
(iiie) Any assignment the failure by the Servicer to generally pay its debts as they become due, the admission in writing 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 or the making by the Servicer of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors creditors;
(f) any Security Document shall for any reason fail to create a valid and perfected first priority Security Interest (or voluntarily suspend payment in the case of TPFM and Servicer, a valid and perfected second priority security interest) in any collateral purported to be covered thereby, or any Security Document shall fail to remain in full force or effect or any action shall be taken to discontinue or to assert the invalidity or unenforceability of any Security Document, or the Servicer shall fail to comply with any of the terms or provisions of any Security Document;
(g) the filing by the Servicer of a notice of intention to make a proposal under the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada) or other similar legislation in the applicable jurisdiction, to some or all of its obligationscreditors;
(h) the commencement or filing of a petition, notice or application by or against the Servicer of any proceedings to adjudicate it a bankrupt or insolvent or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any Law of any jurisdiction, whether now or after the date of this Agreement in effect, relating to the dissolution, liquidation or winding up, bankruptcy, insolvency, reorganization of insolvent debtors, arrangement of insolvent debtors, readjustment of debt or moratorium of debts, or to obtain an order for relief by the appointment of a receiver, receiver manager, administrator, inspector, liquidator or trustee or other similar official for it or for any substantial part of its property and, if any such proceeding has been instituted against the Servicer, either such proceeding has not been stayed or dismissed within 45 days or any of the actions sought in such proceeding (including the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official) are granted in whole or in part, or the performance by the Servicer of any act, or the omission to perform any act, that authorizes or indicates its consent to, approval of or acquiescence in, any such proceeding; or
(vii) 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 writing delivered pursuant hereto shall prove to be incorrect in any material respect as of the time when the same shall have been made and, within 30 days after written notice thereof shall have been given to the Servicer or the Servicer otherwise has actual knowledge thereof, the circumstances or condition in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured; or
(viii) Either of the Servicer or the Depositor shall consolidate or merge with or into any other Person other than as contemplated in Section 5.2; or
(ix) Any failure by the Servicer to deliver the reports described in Article IV of this Agreement which remains uncured for three Business Days after the date on which such failure commences; provided, however that the period within which Servicer shall deliver such reports shall be extended to such longer period as is appropriate in the event occurrence of a Force Majeure Delay; provided further, that such longer period shall not exceed seven (7) Business Days; or
(x) Any default Change of a payment obligation under any other loan facility, debt instrument or any similar financing arrangement (such facility, instrument or financing arrangement to be an obligation of $5,000,000 or greater) of the Servicer or any "event of default", "early amortization event" or similar event under any indenture, facility or agreement to which the Servicer 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 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 Indebtedness or a trustee or agent to cause, Indebtedness or a portion thereof in excess of five percent (5%) of the Servicer's Tangible Net Worth to become due prior to its stated 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
(xiii) the Servicer (excluding Backup Servicer if it becomes the Servicer) ceases to own at least 100% of the 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 4.23Control.
(b) then, and in each and every such case, so long as a Servicer Termination Event shall not have been remedied within the applicable grace period, the Indenture Trustee shall, at the direction of the Agent on behalf of the Majority Noteholders, by notice then given in writing to the Servicer, 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 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 to the 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
Sources: Credit Agreement
Servicer Termination Events. (a) If any one of the following events ("Servicer Termination Events") shall occur and be continuing:
(i) The failure by the Servicer to make deposit in the Note Account any payment or deposit required to be made by the Servicer hereunder, it under the Lock-Box terms of this Agreement or any other Operative Document and the continuance of such failure which continues unremedied for a period of two (2) one Business Day after the date on upon which such payment or deposit was due and not is required to be made; or
(ii) The failure by the Servicer or, prior to the termination of the OAC Subservicing Agreement, OAC, duly to observe or perform, in any material respect, any other 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 or the OAC, as Subservicer, pursuant to the OAC Subservicing Agreement, as applicable, which failure continues unremedied for a period of 30 days, after the date on which written notice of such failure is delivered failure, requiring the same to be remedied, shall have been given to the Servicer or OAC, as Subservicer, as applicable, by the Indenture Trustee or to the Servicer otherwise has actual knowledge or OAC, as Subservicer, as applicable, and the Indenture Trustee by any holder of such facta Note evidencing an aggregate undivided interest in the Notes of a Percentage Interest of at least 25%; 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 Servicer, the Seller (if an Affiliate of the Servicer) or, prior to the termination of the OAC Subservicing Agreement, OAC, 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
(viv) The Servicer or Servicer, the Seller (if an Affiliate of the Servicer) shall or, prior to the termination of the OAC Subservicing Agreement, OAC, shall, after November 15, 2002, 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
(viv) So long as the Seller is the Servicer or an Affiliate of the Servicer, any failure of the Seller to repurchase any Receivable as required by Section 2.4; or
(viivi) Any representation, warranty or statement of the Servicer (except those not applicable Servicer, prior to Backup Servicer if it becomes Servicer hereunder) made in this Agreement or any certificate, report or other writing delivered pursuant hereto shall prove to be incorrect in any material respect as the termination of the time when the same shall have been made andOAC Subservicing Agreement, within 30 days after written notice thereof shall have been given to the Servicer or the Servicer otherwise has actual knowledge thereofOAC, the circumstances or condition in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured; or
(viii) Either of the Servicer or the Depositor shall consolidate or merge with or into any other Person other than as contemplated in Section 5.2Person; or
(ixvii) Any failure by the Servicer to deliver the reports described in Article IV of this Agreement which remains uncured for three Business Days default, after the date on which such failure commences; providedClosing Date, however that the period within which Servicer shall deliver such reports shall be extended to such longer period as is 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 or performance obligation under any other loan facility, debt instrument or any similar financing arrangement (such facility, instrument or financing arrangement to be an obligation of $5,000,000 10,000,000 or greater) of the Servicer or any "event or, prior to the termination of default"the OAC Subservicing Agreement, "early amortization event" or similar event under any indentureOAC, facility or agreement to which the Servicer 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
(xiviii) [Intentionally deleted]; or
(ix) There shall have occurred any material adverse change in the operations of the Servicer since December 31, 2001the Closing Date, 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
(xiix) A default or breach An Event of Default shall occur have occurred and be continuing 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 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 Indebtedness or a trustee or agent to cause, Indebtedness or a portion thereof in excess of five percent (5%) of the Servicer's Tangible Net Worth to become due prior to its stated 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
(xiii) the Servicer (excluding Backup Servicer if it becomes the Servicer) ceases to own at least 100% of the 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 4.23Indenture.
(b) then, and in each and every such case, so long as a Servicer Termination Event shall not have been remedied within the applicable grace period, the Indenture Trustee shall, at the direction of the Agent on behalf of the Majority Noteholders, by notice then given in writing to the Servicer, 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 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 to the 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 Note 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 Files 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. (a) If any one of the following events ("a “Servicer Termination Events"Event”) shall occur and be continuingcontinuing on any date:
(ia) The any failure by the Servicer to make any payment 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, 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 report is required to be made by or given, as the Servicer hereundercase may be, under the Lock-Box Agreement or any other Operative Document and the continuance terms of such failure for a period of two (2) Business Day after the date on which such payment or deposit was due and not made; orthis Agreement;
(iib) The any failure by on the part of the Servicer duly to observe or perform, perform in any material respect, respect any other covenants, obligations covenants or agreements of the Servicer (except those not applicable to Backup Servicer if its becomes Servicer hereunder) as set forth in this Agreement, Agreement or any other Transaction Document to which failure it is a party as Servicer that continues unremedied for a period of 30 days, days after the first to occur of (i) the date on which written notice of such failure is delivered to requiring 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 same 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 writing delivered pursuant hereto shall prove to be incorrect in any material respect as of the time when the same shall have been made and, within 30 days after written notice thereof remedied shall have been given to the Servicer by the Deal Agent or the Borrower and (ii) the date on which an officer of the Servicer otherwise has actual knowledge becomes aware thereof, the circumstances or condition in respect of which such ;
(c) any representation, warranty or statement was 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 in any material respect, and that continues to be unremedied for a period of 30 days after the first to occur of (i) the date on which written notice of such incorrectness requiring the same to be remedied shall have been given to the Servicer by the 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 such request;
(i) a final judgment for the payment of money in excess of $5,000,000 shall have been rendered against the Servicer by a court of competent jurisdiction and the Servicer shall not have either (1) discharged or provided for the discharge of such judgment in accordance with its terms or (2) perfected a timely appeal of such judgment and caused the execution thereof to be stayed (by supersedes or otherwise) during the pendency of such appeal or (ii) the Servicer shall have made a payment in excess of $1,000,000 in settlement of any litigation;
(i) the Servicer fails to make any payment of any principal of or any interest on any debt or other obligations when due (after giving effect to any periods of grace) which is outstanding in a principal amount of more than $5,000,000 in the aggregate, or any event or condition occurs that would permit acceleration of such debt or other obligations if such event or condition has not been eliminated or otherwise curedwaived;
(j) the Servicer fails to maintain a minimum Net Worth of at least $1,000,000,000 plus seventy-five (75%) percent of any new equity and Subordinated Debt issued after March 31, 2004; or
(viiik) Either any Change-in-Control of the Servicer or is made without the Depositor shall consolidate or merge with or into any other Person other than as contemplated in Section 5.2prior written consent of the Borrower and the Deal Agent; or
(ix) Any failure by the Servicer to deliver the reports described in Article IV of this Agreement which remains uncured for three Business Days after the date on which such failure commences; provided, however that the period within which Servicer shall deliver such reports shall be extended to such longer period as is 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 an obligation of $5,000,000 or greater) of the Servicer or any "event of default", "early amortization event" or similar event under any indenture, facility or agreement to which the Servicer 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 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 Indebtedness or a trustee or agent to cause, Indebtedness or a portion thereof in excess of five percent (5%) of the Servicer's Tangible Net Worth to become due prior to its stated 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
(xiiil) the Servicer (excluding Backup Servicer if it becomes shall fail to maintain its status as a business development company or as a registered investment company under the Servicer) ceases 1940 Act; then notwithstanding anything herein to own at least 100% of the 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 casecontrary, so long as a any such Servicer Termination Event Events shall not have been remedied within at the expiration of any applicable grace cure period, the Indenture Trustee shall, at the direction of the Agent on behalf of the Majority NoteholdersDeal Agent, by written notice then given in writing to the ServicerServicer 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 Servicer under this Agreement. Any such notice The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Servicer shall also be given to the Seller, the Issuer, the Depositor and the Backup Successor 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 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 to the 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
Sources: Loan Funding and Servicing Agreement (American Capital Strategies LTD)
Servicer Termination Events. Subject to the prior written consent of the Security Trustee, the Issuer may, by notice in writing to the Servicer (a) If 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 Events"Event) shall occur occurs and be is 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:
(i) The 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 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 make any payment or deposit required the Back-Up Servicer Facilitator) requiring the same to be made by the Servicer hereunder, under the Lock-Box Agreement or any other Operative Document and the continuance of such failure for a period of two (2) Business Day after the date on which such payment or deposit was due and not maderemedied; or
(ii) The where the failure to pay has arisen as a result of a Disruption Event, the cessation of the Disruption Event or, if earlier, 20 Business Days following the Servicer becoming aware of such default and receipt by the Servicer duly 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 observe or perform, in any material respect, any other covenants, obligations or agreements of the Back-Up Servicer Facilitator) requiring the same to be remedied;
(b) the Servicer (except those not applicable to Backup Servicer if defaults in the performance or observance of any of its becomes Servicer hereunder) as set forth in other covenants and obligations under this Agreement, which failure continues unremedied for a period in the reasonable opinion of 30 days, the Issuer (prior to the delivery of an Enforcement Notice) or the opinion of the Security Trustee (after the date on which notice delivery of such failure an Enforcement Notice) is delivered materially prejudicial to the Servicer or interests of the Noteholders, and the Servicer otherwise has actual knowledge does not remedy that failure within 35 Business Days after the earlier of such factthe Servicer becoming aware of the failure or of 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 Servicer's non-compliance to be remedied;
(c) an Insolvency Event occurs in relation to the Servicer; or
(iiid) Any assignment it becomes unlawful in any applicable jurisdiction for the Servicer to perform any of its obligations as contemplated by this Agreement provided that this does not result or arise from compliance by the Servicer of its duties or rights hereunder, under with any instruction from 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 Issuer or the Seller Security Trustee, then the Issuer (if an Affiliate subject to the prior written consent of the ServicerSecurity Trustee) of a decree may at once 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 at 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 writing delivered pursuant hereto shall prove to be incorrect in any material respect as of the time when the same shall have been made and, within 30 days after written notice thereof shall have been given to the Servicer or the Servicer otherwise has actual knowledge thereof, the circumstances or condition in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured; or
(viii) Either of the Servicer or the Depositor shall consolidate or merge with or into any other Person other than as contemplated in Section 5.2; or
(ix) Any failure by the Servicer to deliver the reports described in Article IV of this Agreement which remains uncured for three Business Days after the date on which such failure commences; provided, however that the period within which Servicer shall deliver such reports shall be extended to such longer period as is 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 an obligation of $5,000,000 or greater) of the Servicer or any "event of default", "early amortization event" or similar event under any indenture, facility or agreement to which the Servicer 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 thereafter while such default or breach (i) involves the 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 Indebtedness or a trustee or agent to cause, Indebtedness or a portion thereof in excess of five percent (5%) of the Servicer's Tangible Net Worth to become due prior to its stated 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
(xiii) the Servicer (excluding Backup Servicer if it becomes the Servicer) ceases to own at least 100% of the 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 case, so long as a Servicer Termination Event shall not have been remedied within the applicable grace period, the Indenture Trustee shall, at the direction of the Agent on behalf of the Majority Noteholders, continues by notice then given in writing to the Servicer, Servicer (with a copy to the Security Trustee and the Back-Up Servicer Facilitator) terminate all its appointment as Servicer under this Agreement with effect from a date (not earlier than the date of the rights notice) specified in the notice. In determining whether to provide or withhold consent to the termination of the Servicer by the Issuer, the Security Trustee shall have regard to factors it deems to be relevant (including for this purpose, the availability of a substitute servicer and obligations the effect (including any potential regulatory implications) on the Issuer of not having a servicer in place at any time). Upon the termination of the Servicer as servicer under this Agreement. Any such notice to the Servicer shall also be given to the Seller, the Issuer, Issuer shall use its reasonable endeavours to appoint a substitute servicer that satisfies 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 conditions set forth 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 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 to the 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 Clause 21.2 (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 expensesVoluntary Resignation).
Appears in 1 contract
Sources: Servicing Agreement
Servicer Termination Events. (a) If any one of the following events ("each, a “Servicer Termination Events"Event” and, in relation to the events referred to in Sections 18.1(a) to (d), a “Servicer Event of Default”) shall occur and be continuingoccur:
(ia) The failure by one or more Rating Agencies downgrades the Servicer’s unsecured, unguaranteed and unsubordinated debt obligations, or its issuer default ratings, below the Servicer to make any payment or deposit required to be Replacement Ratings;
(b) default is made by the Servicer hereunder, in the payment on the due date of any amount due to the Guarantor and payable by it under the Lock-Box this Agreement or any other Operative Document and the continuance of such failure for a period of two (2) Business Day after the date on which such payment or deposit was due and not made; or
(ii) The failure by the Servicer duly to observe or perform, in any material respect, any other 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 default continues unremedied for a period of 30 days, three (3) Toronto Business Days after the date on which notice earlier of the Servicer becoming aware of such failure is delivered to the Servicer or the Servicer otherwise has actual knowledge of such fact; or
(iii) Any assignment default and receipt by the Servicer of written notice from the Bond Trustee or the Guarantor requiring the same to be remedied;
(c) default is made by the Servicer (or any delegate thereof) in the performance of its duties obligations under Section 3.6 at any time that one or rights hereundermore Rating Agencies has downgraded the Servicer’s unsecured, under the Lock-Box Agreementunguaranteed and unsubordinated debt obligations, or any other Operative Documentits issuer default ratings, except as specifically permitted hereunder below the Servicer Deposit Threshold Ratings, and such default continues unremedied for a period of one (1) Toronto Business Day after the earlier of the Servicer becoming aware of such default and receipt by the Servicer of written notice from the Bond Trustee or thereunder, or any attempt the Guarantor requiring the same to make such an assignment; orbe remedied;
(ivd) The entry against an Insolvency Event occurs in relation to the Servicer;
(e) the Guarantor resolves, after due consideration and acting reasonably, that the appointment of the Servicer or should be terminated provided that a substitute servicer has entered into a servicing agreement with the Seller parties hereto (if an Affiliate of excluding the Servicer) on terms and conditions substantially similar to the terms and conditions contained herein, and with respect to which the Rating Agency Condition has been satisfied;
(f) a breach 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 covenant provided in Section 5.2(n) or Sections 5.5(a), (except those not applicable to Backup Servicer if it becomes Servicer hereunderb), (c), (d) made in this Agreement or any certificate, report or other writing delivered pursuant hereto shall prove to be incorrect in any material respect as of the time when the same shall have been made and, within 30 days after written notice thereof shall have been given to the Servicer or the Servicer otherwise has actual knowledge thereof, the circumstances or condition in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured; or(e);
(viiig) Either an Issuer Event of the Servicer or the Depositor shall consolidate or merge with or into any other Person other than as contemplated in Section 5.2; or
(ix) Any failure by the Servicer to deliver the reports described in Article IV of this Agreement which remains uncured for three Business Days after the date on which such failure commences; provided, however that the period within which Servicer shall deliver such reports shall be extended to such longer period as is 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 an obligation of $5,000,000 or greater) of the Servicer or any "event of default", "early amortization event" or similar event under any indenture, facility or agreement to which the Servicer 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 Default (i) involves the 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 Worthoccurs and is continuing, or (ii) causeshas previously occurred and is continuing, or permits at any holder of such Indebtedness or a trustee or agent to cause, Indebtedness or a portion thereof in excess of five percent (5%) of time that the Servicer's Tangible Net Worth to become due prior to its stated maturity or prior to its regularly scheduled dates of payment, regardless of whether such default Guarantor is waived, or such right is exercised, by such holder, trustee or agentIndependently Controlled and Governed; or
(xiiih) the Servicer (excluding Backup Servicer if it becomes the Servicer) ceases to own at least 100% of the Depositor; or
(xiv) Any failure default is made by the Servicer to meet in the financial performance or observance of any of its other 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 case, so long as a Servicer Termination Event shall not have been remedied within the applicable grace period, the Indenture Trustee shall, at the direction of the Agent on behalf of the Majority Noteholders, by notice then given in writing to the Servicer, terminate all of the rights and obligations of the Servicer as servicer under this Agreement. Any such notice , which in the reasonable opinion of the Bond Trustee is materially prejudicial to the Servicer shall also be given interests of the Covered Bondholders from time to time and such default continues unremedied within the Seller, the Issuer, the Depositor earlier of 30 Toronto Business Days after becoming aware of such default and the Backup Servicer. On or after the receipt by the Servicer of written notice from the Guarantor or the Bond Trustee requiring the same to be remedied; then the Guarantor and/or the Bond Trustee (x) may at once or at any time thereafter while such written noticeServicer Termination Event continues by notice in writing to the Servicer or, all authority and power (y) in the case of the occurrence of a Servicer Termination Event described in paragraph (a) above at any time that the Guarantor is not Independently Controlled and Governed, shall, terminate its appointment as Servicer under this Agreement, whether Agreement with respect to effect from a date (not earlier than the Notes or date of the Receivables or otherwise, shall pass to and be vested notice) specified 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 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 to the 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 expensesnotice.
Appears in 1 contract
Servicer Termination Events. (a) If The occurrence of any one of the following events ("shall with respect to the Servicer be a “Servicer Termination Events") shall occur and be continuing:Even” which are in full substitution for the Service Termination Events contained in Section 4.01 of the Current Servicing Agreement.
(ia) The failure by the Servicer fails to make any payment payment, transfer or deposit required pursuant to be made by the Servicer hereunderServicing Agreement on the day when due, under the Lock-Box Agreement or any other Operative Document and the continuance of such failure in each case that continues unremedied for a period of two (2) Business Day Days after the earlier to occur of (x) actual discovery by a Responsible Officer of the Servicer, or (y) the date on which such payment or deposit was due and not made; orwritten notice requiring the same to be remedied has been given to the Servicer by Lender;
(iib) The failure any representation or warranty made by the Servicer duly in this Supplement or the Servicing Agreement or in any certificate or report delivered pursuant to the Servicing Agreement shall prove to have been incorrect in any material respect when made and such is not cured within thirty (30) days after the earlier to occur of (x) actual discovery by a Responsible Officer of the Servicer, or (y) the date on which written notice requiring the same to be remedied has been given to the Servicer by Lender; provided, however, that if any such breach is reasonably remediable within 180 days after its occurrence, such breach shall not be a Servicer Termination Event hereunder for such period of time (but not longer than 180 days following the occurrence thereof) as the Servicer is attempting to remedy it;
(c) any failure on the part of the Servicer to observe or perform, in perform any material respect, any other covenants, obligations or agreements covenant of the Servicer (except those not applicable to Backup Servicer if its becomes Servicer hereunder) as set forth in this Agreementthe Servicing Agreement which is not cured within 30 days after the earlier to occur of (x) actual discovery by responsible officer of the Servicer, or (y) the date on which written notice requiring the same to remedied has been given to the Servicer by the Lender;
(d) the Servicer shall fail to deliver any monthly Servicer Report required to be delivered under the Servicing Agreement on or before the day when due, and such failure continues unremedied for a period of 30 daysthree (3) Business Days;
(e) it shall become unlawful for any reason for the Servicer to continue to service the Designated Receivables or otherwise perform its obligations under the Servicing Agreement or the Servicer shall cease to possess all material and necessary licenses to carry out its obligations under the Servicing Agreement; provided if the Servicer can continue servicing the Designated Receivables and perform its obligations under the Servicing Agreement without one or more material and necessary licenses that the failure to have does not have a material adverse effect on the Lender or the Servicer's performance under the Servicing Agreement, the Servicer shall have ninety (90) days to obtain such licenses after the earlier to occur of (x) actual discovery by a Responsible Officer of the Servicer, or (y) the date on which written notice of such failure is delivered requiring the same to be remedied has been given to the Servicer by Lender;
(f) For any Measurement Period ending on or after September 30, 2000, both (i) the Lender Net Collections for the Collection Measurement Period then ending are less than 90% of the Projected Lender Net Collections for such Collection Measurement Period (the amount of any such deficit, a “Shortfall”) and (ii) there was also a Shortfall for the immediately-preceding Measurement Period for the Collection Measurement Period then ended; provided that no Servicer Termination Event shall occur under this clause (f) if and to the extent that as of the last day of any Measurement Period (A) the aggregate Lender Net Collections from all prior Measurement Periods exceeded 90% of the Projected Lender Net Collections from all such prior Measurement Periods such surplus then exceeds the applicable Shortfall (as determined in clause (i) above) in the current Collection Measurement Period or (B) the Servicer otherwise has actual knowledge pays to the Lender for application to the amounts owing pursuant to the Note an amount equal to or greater than the applicable Shortfall (as determined in clause (i) above after application of such fact; orclause (A) above) in the current Collection Measurement Period;
(iiig) Any assignment by the Servicer's consolidated stockholder's equity as required to be shown on its consolidated financial statements is less than $5,000,000;
(h) the Servicer 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 conservator, 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 it or of or relating to all or substantially all of its property;
(i) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days;
(j) the Seller Servicer shall admit be in writing its inability to pay its debts generally as they become due, file a petition to take advantage default in the payment of any debt in excess of $100,000 beyond any applicable insolvency grace or reorganization statute, make an assignment for cure period and which default is not currently waived;
(k) the benefit Servicer shall be in breach in the performance of its creditors any material agreement or voluntarily suspend payment material contract beyond any applicable grace or cure period and such breach is not cured or currently waived within forty-five (45) days of its obligationssuch breach; 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 writing delivered pursuant hereto shall prove to be incorrect in any material respect as of the time when the same shall have been made and, within 30 days after written notice thereof shall have been given to the Servicer or the Servicer otherwise has actual knowledge thereof, the circumstances or condition in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured; or
(viii) Either of the Servicer or the Depositor shall consolidate or merge with or into any other Person other than as contemplated in Section 5.2; or
(ix) Any failure by the Servicer to deliver the reports described in Article IV of this Agreement which remains uncured for three Business Days after the date on which such failure commences; provided, however that the period within which Servicer shall deliver such reports shall be extended to such longer period as is 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 an obligation of $5,000,000 or greater) of the Servicer or any "event of default", "early amortization event" or similar event under any indenture, facility or agreement to which the Servicer 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 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 Indebtedness or a trustee or agent to cause, Indebtedness or a portion thereof in excess of five percent (5%) of the Servicer's Tangible Net Worth to become due prior to its stated 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
(xiiil) the Servicer (excluding Backup Servicer if it becomes the Servicer) ceases to own at least 100% of the 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 case, so long as a Servicer Termination Event shall not have been remedied within the applicable grace period, the Indenture Trustee shall, at the direction of the Agent on behalf of the Majority Noteholders, by notice then given in writing to the Servicer, terminate all of the rights and obligations removal of the Servicer as servicer 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 any securitization of the Servicer under this Agreement, whether with respect to during the Notes continuation of an Event of Default 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 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 to the 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 expensesTermination Event thereunder.
Appears in 1 contract
Sources: Supplement to Servicing Agreement (Encore Capital Group Inc)
Servicer Termination Events. (a) If any one Any of the following events ("acts or occurrences shall constitute a Servicer Termination Events"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 continuingof no force or effect:
(i) The any failure by the Servicer to make any payment or deposit required remit to be made by the Servicer hereunder, under the Lock-Box Agreement or Accounts, within three Business Days of the receipt thereof, any other Operative Document and payments received by it in respect of the continuance of such failure for a period of two (2) Business Day after the date on which such payment or deposit was due and not made; orFranchise Assets;
(ii) The any failure by the Servicer duly to observe provide to the Indenture Trustee a Monthly Servicer's Certificate or performa Quarterly Servicer's Certificate within two Business Days of its due date, in any material respect, or with respect to any other covenantsrequired report, obligations or agreements 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 (except those not applicable to Backup Servicer if its becomes Servicer hereunder) as set forth in this Agreement, which failure continues unremedied the due performance and observance of any other provision of the Servicing Agreement and the continuation of such default uncured for a period of 30 daysdays after it has been notified by the Indenture Trustee of, after the date on which notice of or otherwise obtained knowledge of, such failure is delivered to default, provided, however, as long as the Servicer or the Servicer otherwise has actual knowledge of is diligently attempting to cure such fact; or
(iii) Any assignment default, such cure period shall be extended by the Servicer of its duties or rights hereunder, under the Lock-Box Agreement, or any other Operative Document, except an additional period as specifically permitted hereunder or thereunder, or any attempt may be required to make cure such default but in no event by more than 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 additional 30 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 the Servicing Agreement or by the Servicer in its capacity as Servicer in any certificate, report or other writing delivered pursuant hereto shall thereto will prove to be incorrect in any material respect as of the time when the same shall will have been made andor 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 after written notice thereof shall have been given to the Servicer or the Servicer otherwise has actual knowledge thereof, the circumstances or condition in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured; or
(viii) Either of the Servicer or the Depositor shall consolidate or merge with or into any other Person other than as contemplated in Section 5.2; or
(ix) Any failure by the Servicer to deliver the reports described in Article IV of this Agreement which remains uncured for three Business Days after the date on which such failure commences; provided, however that the period within which Servicer shall deliver such reports shall be extended to such longer period as is 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 an obligation of $5,000,000 or greater) of the Servicer or any "event of default", "early amortization event" or similar event under any indenture, facility or agreement to which the Servicer 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 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 knowledge of such Indebtedness breach or a trustee or agent to causereceipt of notice thereof, Indebtedness or a portion thereof in excess of five percent (5%) of the Servicer's Tangible Net Worth to become due prior to its stated 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
(xiii) the Servicer (excluding Backup Servicer if it becomes the Servicer) ceases to own at least 100% of the 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 case, so long as then a Servicer Termination Event shall occur under this clause (v) as a result of such breach if it is not have been remedied within cured in all material respects by the applicable grace end of such 30-day period;
(vi) the Servicer makes an assignment for the benefit of creditors or generally fails to pay its debts as such debts become due;
(vii) the Servicer's petition or application to any tribunal for, or its consent to, the Indenture Trustee shallappointment of, at the direction of the Agent on behalf of the Majority Noteholdersor taking possession by, by notice then given in writing to the Servicera trustee, 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 Sellerreceiver, the Issuercustodian, the Depositor and the Backup Servicer. On liquidator 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 similar official of the Servicer, as attorney-in-fact or otherwise, of 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 Servicer agrees to cooperate with the Backup Servicer in effecting the termination substantial part of the responsibilities 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 under the Insolvency Law of any other jurisdiction;
(viii) any petition or application referred to in clause (vi) is filed, or any proceedings referred to in clause (vi) are commenced, against the Servicer and rights 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;
(ix) 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 hereunderand such order, includingjudgment 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 to comply with the Servicing Standard in the judgment of the Controlling Party, without limitationexercised in a reasonable manner and (b) such failure could reasonably be expected to have a Material Adverse Effect on the Trust Estate (not taking into account the benefits of the Policy), the transfer to the Backup Servicer for the administration by it of all cash amounts that shall at the time be held as determined in good faith by the Servicer Controlling Party;
(xii) the Debt Service Coverage Ratio is less than or equal to 1.10x; and
(xiii) an Event of Default under the Indenture has been declared 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 expensescontinuing.
Appears in 1 contract
Servicer Termination Events. Subject to the prior written consent of the Security Trustee, the Issuer may, by notice in writing to the Servicer (a) If 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 Events"Event) shall occur occurs and be is 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 35 Business Days after:
(i) The 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 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 make any payment or deposit required the Back-Up Servicer Facilitator) requiring the same to be made by the Servicer hereunder, under the Lock-Box Agreement or any other Operative Document and the continuance of such failure for a period of two (2) Business Day after the date on which such payment or deposit was due and not maderemedied; or
(ii) The where the failure to pay has arisen as a result of a Disruption Event, the cessation of the Disruption Event or, if earlier, 60 Business Days following the Servicer becoming aware of such default and receipt by the Servicer duly 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 observe or perform, in any material respect, any other covenants, obligations or agreements of the Back-Up Servicer Facilitator) requiring the same to be remedied;
(b) the Servicer (except those not applicable to Backup Servicer if defaults in the performance or observance of any of its becomes Servicer hereunder) as set forth in other covenants and obligations under this Agreement, which failure continues unremedied for a period in the reasonable opinion of 30 days, the Issuer (prior to the delivery of an Enforcement Notice) or the opinion of the Security Trustee (after the date on which notice delivery of such failure an Enforcement Notice) is delivered materially prejudicial to the Servicer or interests of the Noteholders, and the Servicer otherwise has actual knowledge does not remedy that failure within 35 Business Days after the earlier of such factthe Servicer becoming aware of the failure or of 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 Servicer's non-compliance to be remedied;
(c) an Insolvency Event occurs in relation to the Servicer; or
(iiid) Any assignment it becomes unlawful in any applicable jurisdiction for the Servicer to perform any of its obligations as contemplated by this Agreement provided that this does not result or arise from compliance by the Servicer of its duties or rights hereunder, under with any instruction from 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 Issuer or the Seller Security Trustee, then the Issuer (if an Affiliate subject to the prior written consent of the ServicerSecurity Trustee) of a decree may at once 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 at 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 writing delivered pursuant hereto shall prove to be incorrect in any material respect as of the time when the same shall have been made and, within 30 days after written notice thereof shall have been given to the Servicer or the Servicer otherwise has actual knowledge thereof, the circumstances or condition in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured; or
(viii) Either of the Servicer or the Depositor shall consolidate or merge with or into any other Person other than as contemplated in Section 5.2; or
(ix) Any failure by the Servicer to deliver the reports described in Article IV of this Agreement which remains uncured for three Business Days after the date on which such failure commences; provided, however that the period within which Servicer shall deliver such reports shall be extended to such longer period as is 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 an obligation of $5,000,000 or greater) of the Servicer or any "event of default", "early amortization event" or similar event under any indenture, facility or agreement to which the Servicer 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 thereafter while such default or breach (i) involves the 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 Indebtedness or a trustee or agent to cause, Indebtedness or a portion thereof in excess of five percent (5%) of the Servicer's Tangible Net Worth to become due prior to its stated 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
(xiii) the Servicer (excluding Backup Servicer if it becomes the Servicer) ceases to own at least 100% of the 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 case, so long as a Servicer Termination Event shall not have been remedied within the applicable grace period, the Indenture Trustee shall, at the direction of the Agent on behalf of the Majority Noteholders, continues by notice then given in writing to the Servicer, Servicer (with a copy to the Security Trustee and the Back-Up Servicer Facilitator) terminate all its appointment as Servicer under this Agreement with effect from a date (not earlier than the date of the rights notice) specified in the notice. In determining whether to provide or withhold consent to the termination of the Servicer by the Issuer, the Security Trustee shall have regard to factors it deems to be relevant (including for this purpose, the availability of a substitute servicer and obligations the effect (including any potential regulatory implications) on the Issuer of not having a servicer in place at any time). Upon the termination of the Servicer as servicer under this Agreement. Any such notice to the Servicer shall also be given to the Seller, the Issuer, Issuer shall use its reasonable endeavours to appoint a substitute servicer that satisfies 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 conditions set forth 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 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 to the 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 Clause 21.2 (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 expensesVoluntary Resignation).
Appears in 1 contract
Sources: Servicing Agreement
Servicer Termination Events. (a) If any one of the following events ("Servicer Termination Events") shall occur and be continuing:
(i) The Any failure by the Servicer or, for so long as LBAC is the Servicer, the Transferor, to make any deliver to the Trust Collateral Agent for payment to Noteholders or Certificateholder or deposit in the Spread Account any proceeds or payment required to be made by the Servicer hereunder, so delivered under the Lock-Box terms of the Notes, the Certificate, the Purchase Agreement, any Transfer Agreement or any other Operative Document and the continuance this Agreement (including deposits of such failure Purchase Amounts) that shall continue unremedied for a period of two Business Days after written notice is received by the Servicer from the Trust Collateral Agent or the Note Insurer or after discovery of such failure by the Servicer (2) but in no event later than the five Business Day Days after the date on which Servicer is required to make such payment delivery or deposit was due and not madedeposit); or
(ii) The failure Servicer's Certificate required by Section 4.9 shall not have been delivered to the Trust Collateral Agent and the Note Insurer within one Business Day of the date such Servicer's Certificate is required to be delivered; or the statement required by Section 4.10 or the report required by Section 4.11 shall not have been delivered within five (5) days after the date such statement or report, as the case may be, is required to be delivered; or
(iii) Failure on the part of the Servicer to observe its covenants and agreements set forth in Section 8.3 or, for so long as LBAC is the Servicer, failure on the part of the Transferor to observe its covenants and agreements set forth in Section 7.3; or
(iv) Failure on the part of LBAC, the Servicer or, for so long as LBAC is the Servicer, the Transferor, as the case may be, duly to observe or perform, to perform in any material respect, respect any other covenants, obligations covenants or agreements of LBAC, the Servicer Servicer, the Custodian or the Transferor (except those not applicable to Backup Servicer if its becomes Servicer hereunderas the case may be) as set forth in the Notes, the Certificate, the Purchase Agreement, any Transfer Agreement or in this Agreement, which failure continues shall continue unremedied for a period of 30 days, days after the date on which written notice of such failure is delivered requiring the same to be remedied, shall have been given (1) to LBAC, the Servicer or the Servicer otherwise has actual knowledge of such fact; or
Transferor (iii) Any assignment as the case may be), by the Servicer of its duties Note Insurer or rights hereunder, under the Lock-Box AgreementTrust Collateral Agent, or any other Operative Document(2) to LBAC, 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 Transferor (if an Affiliate as the case may be), and to the Trust Collateral Agent and the Note Insurer by the Class A Noteholders evidencing not less than 25% of the Servicer) Class A Note Balance, if a Note Insurer Event 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 Default has occurred 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 daysis continuing; or
(v) The Servicer entry of a decree or order for relief by a court or regulatory authority having jurisdiction in respect of LBAC or the Seller Servicer (if an Affiliate or, so long as LBAC is the Servicer, the Transferor, or any of the Servicer's other Affiliates, if the Servicer's ability to service the Receivables is adversely affected thereby) shall voluntarily go into liquidationin an involuntary case under the federal bankruptcy laws, as now or hereafter in effect, or another present or future, federal or state, bankruptcy, insolvency or similar law, or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of LBAC, the Servicer (or the Transferor or any other Affiliate of LBAC, if applicable) or of any substantial part of their respective properties or ordering the winding up or liquidation of the affairs of LBAC or the Servicer (or the Transferor or any other Affiliate of LBAC, if applicable) or the commencement of an involuntary case under the federal or state bankruptcy, insolvency or similar laws, as now or hereafter in effect, or another present or future, federal or state bankruptcy, insolvency or similar law with respect to LBAC or the Servicer (or the Transferor or any other Affiliate of LBAC, if applicable) and such case is not dismissed within 60 days; or
(vi) The commencement by LBAC or the Servicer (or, so long as LBAC is the Servicer, the Transferor or any of the Servicer's other Affiliates, if the Servicer's ability to service the Receivables is adversely affected thereby) of a voluntary case under the federal bankruptcy laws, as now or hereafter in effect, or any other present or future, federal or state, bankruptcy, insolvency or similar law, or the consent by LBAC or the Servicer (or the Transferor or any other Affiliate of LBAC, if applicable) to the appointment of or taking possession by a conservator receiver, liquidator, assignee, trustee, custodian, sequestrator or receiver or liquidator or other similar person in any insolvency, readjustment official 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, LBAC or the Servicer (or the Seller shall admit in writing its inability to pay its debts generally as they become dueTransferor or any other Affiliate of LBAC, file a petition to take advantage if applicable) or of any applicable insolvency substantial part of its property or reorganization statutethe making by LBAC or the Servicer (or the Transferor or any other Affiliate of LBAC, make if applicable) of an assignment for the benefit of its creditors or voluntarily suspend payment the failure by LBAC or the Servicer (or the Transferor or any other Affiliate of LBAC, if applicable) generally to pay its obligations; or
debts as such debts become due or the taking of corporate action by LBAC or the Servicer (vior the Transferor or any other Affiliate of LBAC, if applicable) So long as the Seller is the Servicer, in furtherance of any failure of the Seller to repurchase any Receivable as required by Section 2.4foregoing; or
(vii) Any representation, warranty or statement of LBAC or the Servicer (except those not applicable to Backup Servicer if it becomes Servicer hereunder) or, for so long as LBAC is the Servicer, the Transferor, made in this Agreement and, with respect to LBAC and the Transferor, the Purchase Agreement or any Transfer Agreement, or in each case any certificate, report or other writing delivered pursuant hereto shall prove to be incorrect in any material respect as of the time when the same shall have been made (excluding, however, any representation or warranty set forth in Section 3.03(b) of the Purchase Agreement or Section 4 of the related Transfer Agreement), and the incorrectness of such representation, warranty or statement has a material adverse effect on the Issuer and, within 30 days after written notice thereof shall have been given (1) to LBAC, the Servicer or the Transferor (as the case may be) by the Trust Collateral Agent or the Note Insurer or (2) to LBAC, the Servicer otherwise or the Transferor (as the case may be), and to the Trust Collateral Agent and the Note Insurer by the Class A Noteholders evidencing not less than 25% of the Class A Note Balance, if a Note Insurer Event of Default has actual knowledge thereofoccurred and is continuing, the circumstances or condition in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured; or
(viii) Either The occurrence of the Servicer or the Depositor shall consolidate or merge with or into any other Person other than as contemplated in Section 5.2; oran Insurance Agreement Event of Default;
(ix) Any failure by A claim is made under the Servicer to deliver the reports described in Article IV of this Agreement which remains uncured for three Business Days after the date on which such failure commences; provided, however that the period within which Servicer shall deliver such reports shall be extended to such longer period as is appropriate in the event of a Force Majeure Delay; provided further, that such longer period shall not exceed seven (7) Business DaysPolicy; or
(x) Any default of So long as a payment obligation under any other loan facility, debt instrument or any similar financing arrangement (such facility, instrument or financing arrangement to be an obligation of $5,000,000 or greater) of the Servicer or any "event of default", "early amortization event" or similar event under any indenture, facility or agreement to which the Servicer 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 Note Insurer Default shall not have occurred any material adverse change in and be continuing, 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 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 Indebtedness or a trustee or agent to cause, Indebtedness or a portion thereof in excess of five percent (5%) of the Servicer's Tangible Net Worth to become due prior to its stated 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
(xiii) the Servicer (excluding Backup Servicer if it becomes the Servicer) ceases to own at least 100% of the Depositor; or
(xiv) Any failure by the Servicer to meet the financial covenants contained in Section 4.21; or
(xv) The Agent Note Insurer shall not have delivered a Servicer Extension Notice pursuant to Section 4.23.
(b) 4.13; then, and in each and every such case, so long as a Servicer Termination Event shall not have been remedied within the applicable grace periodremedied; provided, (i) no Note Insurer Default shall have occurred and be continuing, the Indenture Trustee shallNote Insurer in its sole and absolute discretion, or (ii) if a Note Insurer Default shall have occurred and be continuing, then either the Trust Collateral Agent or the Trust Collateral Agent acting at the written direction of the Agent on behalf of the Majority NoteholdersMajorityholders, by notice then given in writing to the ServicerServicer (and to the Trust Collateral Agent if given by the Note Insurer or by the Noteholders) or by the Note Insurer's failure to deliver a Servicer Extension Notice pursuant to Section 4.13, may terminate all of the rights and obligations of the Servicer as servicer under this Agreement. Any such notice The Servicer shall be entitled to its pro rata share of the Servicing Fee for the number of days in the Collection Period prior to the Servicer shall also be given to the Seller, the Issuer, the Depositor and the Backup Servicereffective date of its termination. 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 Notes, Certificate or the Receivables or otherwise, shall without further action, pass to and be vested in (i) the Backup Back-up Servicer pursuant or (ii) such successor Servicer as may be appointed under Section 9.2; provided, however, that the successor Servicer shall have no liability with respect to and under this Sectionany obligation which was required to be performed by the predecessor Servicer prior to the date the successor Servicer becomes the Servicer or any claim of a third party (including a Noteholder) based on any alleged action or inaction of the predecessor Servicer as Servicer; and, without limitation, the Backup Servicer Trust Collateral Agent is hereby authorized and empowered to execute and deliver, on behalf of the predecessor 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 the Receivables and related documents documents, or otherwise. The Servicer agrees Notwithstanding anything contained in this Agreement to cooperate with the contrary, the Backup Servicer in effecting the termination as successor Servicer is authorized to accept and rely on all of the responsibilities accounting, records (including computer records) and rights work of the prior Servicer hereunder, including, without limitation, the transfer relating to the 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 AccountNotes (collectively, 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.the
Appears in 1 contract
Sources: Sale and Servicing Agreement (Long Beach Acceptance Receivables Corp.)
Servicer Termination Events. For purposes of this Agreement and the other Loan Documents, each of the following shall constitute a “Servicer Termination Event”:
(a) If any one of the following events ("Servicer Termination Events") shall occur and be continuing:
(i) The Any failure by the Servicer or, for so long as the Seller or an Affiliate of the Purchaser is the Servicer, the Purchaser, to make deliver or cause to be delivered any proceeds or payment or deposit required to be made by the Servicer hereunder, so delivered under the Lock-Box this Agreement or any other Operative Loan Document and the continuance of such failure that continues unremedied for a period of two Business Days (2or one Business Day with respect to payment of Purchase Amounts) after written notice is received by the Servicer from the Administrative Agent or a Lender or after discovery of such failure by a Responsible Officer of the Servicer;
(b) Failure by the Servicer to deliver, or cause to be delivered, to the Administrative Agent and the Backup Servicer, any Servicer’s Certificate by 12:00 noon New York City time on the second Business Day after the date on which such payment or deposit was due and not made; orServicer’s Certificate is required to be delivered;
(iic) The failure Failure by the Servicer duly or, for so long as the Seller or an Affiliate of the Purchaser is the Servicer, the Purchaser, to perform or observe any term, covenant or perform, in any material respect, any other covenants, obligations or agreements agreement of the Servicer (except those not applicable to Backup Servicer if its becomes Servicer hereunder) or the Purchaser, as applicable, set forth in this AgreementAgreement or any other Loan Document (other than any term, covenant or agreement referred to in another subparagraph of this Section 10.1), which failure (i) materially and adversely affects the rights of the Administrative Agent or any of the Lenders and (ii) except for covenants relating to merger and consolidation or preservation of ownership or security interests in the Financed Vehicles, continues unremedied for a period of 30 days, days after the earlier of knowledge thereof by the Servicer or after the date on which written notice of such failure is delivered failure, requiring the same to be remedied, shall have been given to the Servicer by the Administrative Agent or a Lender;
(d) The occurrence of an Insolvency Event with respect to 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 for so long 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 or 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 Purchaser is the Servicer, any failure of the Seller to repurchase any Receivable as required by Section 2.4; orPurchaser);
(viie) 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 other Loan Document to which it is a party or any certificate, report or other writing delivered pursuant hereto or thereto shall prove to be incorrect in any material respect as of the time when the same shall have been made and(excluding, however, any representation or warranty set forth in this Agreement relating to the characteristics of the Receivables), and such incorrectness materially and adversely affects the Purchaser, the Administrative Agent or any Lender and is not cured within 30 calendar days after the earlier of knowledge thereof by the Servicer or, after written notice thereof shall have been given to the Servicer by the Administrative Agent or the Servicer otherwise has actual knowledge thereofa Lender, the circumstances or condition in respect of which such representation, warranty or statement was incorrect shall have not have been eliminated or otherwise cured; or;
(viiif) Either of A Material Adverse Change with respect to the Servicer or the Depositor shall consolidate or merge with or into any other Person other than as contemplated in Section 5.2; oroccur;
(ixg) Any failure by the Servicer to deliver the reports described in Article IV An Event of this Agreement which remains uncured for three Business Days after the date on which such failure commences; provided, however that the period within which Servicer shall deliver such reports shall be extended to such longer period as is 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 an obligation of $5,000,000 or greater) of the Servicer or any "event of default", "early amortization event" or similar event under any indenture, facility or agreement to which the Servicer 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 Default 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 (so long as CPS is Servicer's ability to either collect the Receivables or to perform under this Agreement; or);
(xiih) 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 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 Indebtedness or a trustee or agent to cause, Indebtedness or a portion thereof in excess of five percent (5%) of the Servicer's Tangible Net Worth to become due prior to its stated 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
(xiii) the Servicer (excluding Backup Servicer if it becomes the Servicer) ceases to own at least 100% of the 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 caseCPS, so long as a Servicer Termination Event shall not have been remedied within the applicable grace periodCPS is Servicer, the Indenture Trustee shall, at the direction fails to maintain minimum Adjusted Tangible Net Worth of the Agent on behalf sum of (i) negative $15,000,000, plus (ii) 50% of positive (a) pre-tax income for each fiscal quarter after December 31, 2011, up until the quarter in which the net deferred tax asset is greater than or equal to $35 million and (b) net income thereafter, measured as of the Majority Noteholdersend of each fiscal quarter; provided, that any additional interest expense caused by notice then given derivative accounting treatment for any warrants issued by CPS shall be factored out of the positive net income in writing clause (ii) above;
(i) CPS, so long as CPS is Servicer, fails to maintain cash and cash equivalents of at least $8.5 million as of the end of any calendar month; and
(j) A Change of Control of CPS shall occur. In the event that the Servicer, 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 IssuerPurchaser, the Depositor and the Backup Servicer. On Borrower 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; andgains knowledge of the occurrence of a Servicer Termination Event, 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 Servicer agrees to cooperate with the Backup Servicer in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitationSeller, the transfer to Purchaser, the Backup Servicer for Borrower, 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, Administrative Agent 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 as applicable, shall promptly notify each Lender in writing of such costs and expensesoccurrence; provided, that, the Servicer shall be deemed to satisfy such obligation upon its delivery of an Officer’s Certificate in accordance with Section 4.10.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Consumer Portfolio Services Inc)
Servicer Termination Events. For purposes of this Agreement, each of the following shall constitute a "Servicer Termination Event":
(a) If any one of the following events ("Servicer Termination Events") shall occur and be continuing:
(i) The failure by the Servicer to make deposit into any Local Collection Account or the Collection Account any proceeds or payment or deposit required to be made by the Servicer hereunder, so delivered under the Lock-Box terms of this Agreement or any other Operative Document and the continuance of such failure that continues unremedied for a period of two Business Days (2) one Business Day with respect to payments of Purchase Amounts) after written notice is received by the date on which Servicer or after discovery of such payment or deposit was due and not made; orfailure by a Responsible Officer of the Servicer;
(iib) The 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, perform any other covenants, obligations covenants 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 (i) materially and adversely affects the rights of the Securityholders (determined without regard to the availability of funds under the Policy) or of the Security Insurer (unless the Security Insurer is no longer the Controlling Party) and (ii) continues unremedied for a period of 30 days, days after knowledge thereof by the Servicer or after the date on which written notice of such failure is delivered to requiring 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 same 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 writing delivered pursuant hereto shall prove to be incorrect in any material respect as of the time when the same shall have been made and, within 30 days after written notice thereof remedied shall have been given to the Servicer by any of the Owner Trustee, the Indenture Trustee or the Security Insurer (or, if a Security Insurer Default shall have occurred and be continuing, Noteholders evidencing not less than 25% of the Outstanding Amounts of the Notes);
(d) the occurrence of an Insolvency Event with respect to the Servicer otherwise has actual knowledge thereofor, so long as First Merchants is the Servicer, the circumstances or condition in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured; orSeller;
(viiie) Either of so long as the Servicer or Security Insurer is the Depositor shall consolidate or merge with or into Controlling Party, any other Person other than as contemplated in Section 5.2; or
(ix) Any failure by the Servicer Security Insurer to deliver the reports described in Article IV of this Agreement which remains uncured for three Business Days after the date on which such failure commences; provided, however that the period within which Servicer shall deliver such reports shall be extended to such longer period as is 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 an obligation of $5,000,000 or greater) of the Servicer or any "event of default", "early amortization event" or similar event under any indenture, facility or agreement to which the Servicer 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 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 Indebtedness or a trustee or agent to cause, Indebtedness or a portion thereof in excess of five percent (5%) of the Servicer's Tangible Net Worth to become due prior to its stated 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
(xiii) the Servicer (excluding Backup Servicer if it becomes the Servicer) ceases to own at least 100% of the 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 4.23.4.14;
(bf) then, and in each and every such case, so long as a Servicer Termination the Security Insurer is the Controlling Party, an Insurance Agreement Event of Default shall not have been remedied within the applicable grace period, the Indenture Trustee shall, at the direction of the Agent on behalf of the Majority Noteholders, by notice then given in writing to the Servicer, terminate all of the rights occurred and obligations of be continuing; or
(g) the Servicer is terminated 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 any other trust that has issued one 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 more classes 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 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 to the 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 asset backed securities with respect to which 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 expensesSecurity Insurer has issued a financial insurance guaranty policy.
Appears in 1 contract
Sources: Sale and Servicing Agreement (First Merchants Acceptance Corp)
Servicer Termination Events. (a) If any one Each of the following events (shall constitute a "Servicer Termination EventsSERVICER TERMINATION EVENT") shall occur and be continuing:
(ia) The Any failure by the Servicer to make any payment or deposit required to be made by the Servicer hereunder, under the Lock-Box Lockbox Agreement or any other Operative Transaction Document and the continuance of such failure for a period of two (2) three Business Day Days after the date on which such payment or deposit was due and not made; or;
(iib) The failure by Failure on the Servicer duly Servicer's part to observe or perform, perform in any material respect, respect any other covenants, obligations covenant or agreements of the Servicer (except those not applicable to Backup Servicer if its becomes Servicer hereunder) as set forth agreement in this Agreement, the Lockbox Agreement or any other Transaction Document (other than a covenant or agreement, the breach of which failure is specifically addressed elsewhere in this Section) which continues unremedied for a period of 30 days, 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;
(iiic) Any assignment by the Servicer of its duties or rights hereunder, under the Lock-Box Lockbox Agreement, or any other Operative Transaction Document, except as specifically permitted hereunder or thereunder, or any attempt to make such an assignment; or;
(ivd) The entry against An involuntary case under any applicable bankruptcy, insolvency or other similar law shall have been commenced in respect of the Servicer and shall not have been dismissed within 30 days, 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 shall have entered 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 for relief in respect of the Servicer in an involuntary case under any applicable bankruptcy, insolvency or stayed other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Servicer or for 60 days; orany substantial liquidation or winding up of its affairs;
(ve) The Servicer shall have commenced a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or shall have consented to the Seller (if entry of an Affiliate of the Servicer) order for relief in an involuntary case under any such law, or shall voluntarily go into liquidation, consent have consented to the appointment of or taking possession by a conservator receiver, liquidator, assignee, trustee, custodian or receiver sequestrator (or liquidator or other similar person in any insolvency, readjustment official) 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 for any substantial part 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 have made any applicable insolvency or reorganization statute, make an general assignment for the benefit of its creditors creditors, or voluntarily suspend payment shall have failed to, or admitted in writing its inability to, pay its debts as they become due, or shall have taken any corporate action in furtherance of its obligations; orthe foregoing;
(vif) So long Any failure by the Servicer to deliver the reports described in Article Nine of this Agreement which remains uncured for three Business Days after the date on which such failure commences; PROVIDED, HOWEVER that the period within which Servicer shall deliver such reports shall be extended to such longer period as is appropriate in the Seller is the Servicer, any failure event of the Seller to repurchase any Receivable as required by Section 2.4; ora Force Majeure Delay;
(viig) 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 writing delivered pursuant hereto shall prove to be incorrect in any material respect as of the time when the same shall have been made and, within 30 days after written notice thereof shall have been given to the Servicer by the Trust or the Servicer otherwise has actual knowledge thereof, the circumstances or condition in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured; or;
(viii) Either of the Servicer or the Depositor shall consolidate or merge with or into any other Person other than as contemplated in Section 5.2; or
(ix) Any failure by the Servicer to deliver the reports described in Article IV of this Agreement which remains uncured for three Business Days after the date on which such failure commences; provided, however that the period within which Servicer shall deliver such reports shall be extended to such longer period as is 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 an obligation of $5,000,000 or greater) of the Servicer or any "event of default", "early amortization event" or similar event under any indenture, facility or agreement to which the Servicer 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
(xiih) 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 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 Indebtedness or a trustee or agent to cause, Indebtedness or a portion thereof in excess of five percent (5%) of the Servicer's Tangible Net Worth to become due prior to its stated 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;
(i) As of any Determination Date, the Trailing Three Month (31 to 59), (60 to 89) and (90 to 119) Day Delinquency Rates exceed 8.0%, 6.0% and 4.0%, respectively; provided, however, if such Determination Date is after the Purchase Period Termination Date and the Asset Pool aggregate Receivable Balance as of such Determination Date is less than 7.50% of the aggregate of the original Receivables Balances of all Receivables at any time in the Asset Pool, such test shall no longer be applicable; or
(xiiij) As of any Determination Date, the Servicer (excluding Backup Servicer if it Trailing Three Month Gross Recoveries shall be less than 80%. In the event that any party hereto becomes the Servicer) ceases to own at least 100% aware of the 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 case, so long as a Servicer Termination Event (or an event which with the passage of time or giving of notice would become a Servicer Termination Event) such party shall not promptly notify the other parties hereto. Additionally, upon the occurrence of a Servicer Termination Event and the Facility Administrator's giving of notice of a Service Transfer pursuant to Section 8.2(a) hereof, such Servicer Termination Event shall be irrevocably deemed to have been remedied within the applicable grace period, the Indenture Trustee shall, at the direction "OCCURRED AND BE CONTINUING" unless otherwise waived by more than 50% of the Agent on behalf outstanding balance of the Majority Noteholderseach Class of Notes; PROVIDED, by notice then given in writing to FURTHER, that so long as Bluegreen or an Affiliate of Bluegreen is not the Servicer, terminate all clauses (h), (i) and (j) 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 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 to the 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 8.1 shall be paid by the not constitute a Servicer (or if the Servicer is the Backup Servicer, the initial Servicer) upon presentation of reasonable documentation of such costs and expensesTermination Event.
Appears in 1 contract
Servicer Termination Events. Subject to the prior written consent of the Security Trustee, the Issuer may, by notice in writing to the Servicer (a) If 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 Events"Event) shall occur occurs and be is continuing:
(ia) The failure by the Servicer to make defaults in the payment on the due date of any payment or deposit required to be made due and payable by the Servicer hereunder, it under the Lock-Box this Agreement or any other Operative Document and the continuance of such failure default continues unremedied for a period of two 10 Business Days after: COPY
(2i) Business Day 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 of written notice from the Issuer or (after the date on which such payment or deposit was due and not madedelivery 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; or
(ii) The where the failure to pay has arisen as a result of a Disruption Event, the cessation of the Disruption Event or, if earlier, 20 Business Days following the Servicer becoming aware of such default and receipt by the Servicer duly 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 observe or perform, in any material respect, any other covenants, obligations or agreements of the Back-Up Servicer Facilitator) requiring the same to be remedied;
(b) the Servicer (except those not applicable to Backup Servicer if defaults in the performance or observance of any of its becomes Servicer hereunder) as set forth in other covenants and obligations under this Agreement, which failure continues unremedied for a period in the reasonable opinion of 30 days, the Issuer (prior to the delivery of an Enforcement Notice) or the opinion of the Security Trustee (after the date on which notice delivery of such failure an Enforcement Notice) is delivered materially prejudicial to the Servicer or interests of the Noteholders, and the Servicer otherwise has actual knowledge does not remedy that failure within 35 Business Days after the earlier of such factthe Servicer becoming aware of the failure or of 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 Servicer's non-compliance to be remedied;
(c) an Insolvency Event occurs in relation to the Servicer; or
(iiid) Any assignment it becomes unlawful in any applicable jurisdiction for the Servicer to perform any of its obligations as contemplated by this Agreement provided that this does not result or arise from compliance by the Servicer of its duties or rights hereunder, under with any instruction from 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 Issuer or the Seller Security Trustee, then the Issuer (if an Affiliate subject to the prior written consent of the ServicerSecurity Trustee) of a decree may at once 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 at 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 writing delivered pursuant hereto shall prove to be incorrect in any material respect as of the time when the same shall have been made and, within 30 days after written notice thereof shall have been given to the Servicer or the Servicer otherwise has actual knowledge thereof, the circumstances or condition in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured; or
(viii) Either of the Servicer or the Depositor shall consolidate or merge with or into any other Person other than as contemplated in Section 5.2; or
(ix) Any failure by the Servicer to deliver the reports described in Article IV of this Agreement which remains uncured for three Business Days after the date on which such failure commences; provided, however that the period within which Servicer shall deliver such reports shall be extended to such longer period as is 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 an obligation of $5,000,000 or greater) of the Servicer or any "event of default", "early amortization event" or similar event under any indenture, facility or agreement to which the Servicer 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 thereafter while such default or breach (i) involves the 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 Indebtedness or a trustee or agent to cause, Indebtedness or a portion thereof in excess of five percent (5%) of the Servicer's Tangible Net Worth to become due prior to its stated 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
(xiii) the Servicer (excluding Backup Servicer if it becomes the Servicer) ceases to own at least 100% of the 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 case, so long as a Servicer Termination Event shall not have been remedied within the applicable grace period, the Indenture Trustee shall, at the direction of the Agent on behalf of the Majority Noteholders, continues by notice then given in writing to the Servicer, Servicer (with a copy to the Security Trustee and the Back-Up Servicer Facilitator) terminate all its appointment as Servicer under this Agreement with effect from a date (not earlier than the date of the rights notice) specified in the notice. In determining whether to provide or withhold consent to the termination of the Servicer by the Issuer, the Security Trustee shall have regard to factors it deems to be relevant (including for this purpose, the availability of a substitute servicer and obligations the effect (including any potential regulatory implications) on the Issuer of not having a servicer in place at any time). Upon the termination of the Servicer as servicer under this Agreement. Any such notice to the Servicer shall also be given to the Seller, the Issuer, Issuer shall use its reasonable endeavours to appoint a substitute servicer that satisfies 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 conditions set forth 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 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 to the 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 Clause 21.2 (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 expensesVoluntary Resignation).
Appears in 1 contract
Sources: Servicing Agreement
Servicer Termination Events. (a) If any one of the following events ("a “Servicer Termination Events"Event”) shall occur and be continuingcontinuing on any date:
(ia) The any failure by the Servicer to make any payment 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 by or given, as the Servicer hereundercase may be, under the Lock-Box Agreement or any other Operative Document and the continuance terms of such failure for a period of two (2) Business Day after the date on which such payment or deposit was due and not made; orthis Agreement;
(iib) The any failure by on the part of the Servicer duly to observe or perform, perform in any material respect, respect any other covenants, obligations covenants or agreements of the Servicer (except those not applicable to Backup Servicer if its becomes Servicer hereunder) as set forth in this Agreement, Agreement or any other Transaction Document to which failure it is a party as Servicer that continues unremedied for a period of 30 days, days after the first to occur of (i) the date on which written notice of such failure is delivered to requiring 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 same 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 writing delivered pursuant hereto shall prove to be incorrect in any material respect as of the time when the same shall have been made and, within 30 days after written notice thereof remedied shall have been given to the Servicer by the Agent, any Lender or the Servicer otherwise has actual knowledge thereof, Borrower and (ii) the circumstances or condition in respect of date on which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured; or
(viii) Either an officer of the Servicer or the Depositor shall consolidate or merge with or into any other Person other than as contemplated in Section 5.2; orbecomes aware thereof;
(ixc) Any an Insolvency Event shall occur with respect to the Servicer or any of its Affiliates;
(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 material change in the Credit and Collection Policy 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 and each Lender;
(g) as of any date after the date of the Initial Funding, the Servicer fails to maintain a minimum Net Worth of at least $100,000,000 plus seventy-five (75%) percent of any new equity issued after August 2, 2005;
(h) the Servicer shall fail to maintain its status as a business development company or 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 reports described in Article IV of this Agreement which remains uncured for three date occurring five Business Days after the date on which such failure commences; providedreport is required to be made or given, however that as the period within which 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 deliver such reports shall be extended prove to such longer period as is appropriate have been incorrect when made;
(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) the failure of the Servicer to make any payment due with respect to aggregate recourse debt or other obligations with an aggregate principal amount exceeding U.S. $1,000,000 or the occurrence of any event or condition that would permit acceleration of a Force Majeure Delay; provided further, that such longer period shall recourse debt or other obligations if such event or condition has not exceed seven (7) Business Daysbeen waived; or
(xn) 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 an obligation of $5,000,000 or greater) of the Servicer or any "event of default", "early amortization event" or similar event under any indenture, facility or agreement to which the Servicer 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 failure to make any payment when due in respect of any incur additional Indebtedness of the Servicer in excess of five percent (5%) of $30,000,000 after the Servicer's Tangible Net Worth, or (ii) causes, or permits any holder of such Indebtedness or a trustee or agent Closing Date; then notwithstanding anything herein to cause, Indebtedness or a portion thereof in excess of five percent (5%) of the Servicer's Tangible Net Worth to become due prior to its stated 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
(xiii) the Servicer (excluding Backup Servicer if it becomes the Servicer) ceases to own at least 100% of the 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 casecontrary, so long as a any such Servicer Termination Event Events shall not have been remedied within at the expiration of any applicable grace cure period, the Indenture Trustee shall, at the direction of the Agent on behalf of the Majority NoteholdersAgent, by written notice then given in writing to the ServicerServicer 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 Servicer under this Agreement. Any such notice The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Servicer shall also be given to the Seller, the Issuer, the Depositor and the Backup Successor 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 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 to the 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
Sources: Loan Funding and Servicing Agreement (Patriot Capital Funding, Inc.)
Servicer Termination Events. (1) The occurrence of any one or more of the following shall be a “servicer termination event” in relation to the Series 2019-1 Ownership Interest:
(a) If any one of the following events ("Servicer Termination Events") shall occur and be continuing:
(i) The failure by the Servicer fails to make any payment distribution, transfer or deposit required to be made by in respect of the Servicer hereunder, under the LockSeries 2019-Box Agreement or any other Operative Document 1 Ownership Interest and the continuance of such failure continues for a period of two five (25) Business Day after the date on which such payment Days, or deposit was due and not made; or
(ii) The failure by the Servicer duly fails to observe or performperform any covenant or agreement contained in the Pooling and Servicing Agreement or this Series 2019-1 Purchase Agreement, in any if such failure has a material respect, any other covenants, obligations or agreements adverse effect on the ability of the Servicer (except those not applicable Series 2019-1 Co-Owner to Backup Servicer if satisfy its becomes Servicer hereunder) as set forth in this Agreement, which failure obligations to holders of the Series 2019-1 Senior Notes or the Series 2019-1 Subordinated Notes and continues unremedied for a period of 30 daysthirty (30) Business Days after delivery by the Custodian or the Issuer Trustee of written notice thereof to the Servicer;
(b) any 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 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 to be incorrect or unremedied for a period of thirty (30) Business Days after delivery by the date on which Custodian or the Issuer Trustee of written notice thereof to the Servicer;
(c) except where the terms of such failure Section 9.5 of the Pooling and Servicing Agreement have been complied with, there is delivered to 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 Servicer otherwise has actual knowledge laws of such fact; or
(iii) Any assignment by the Servicer of its duties any jurisdiction relating to bankruptcy, insolvency, reorganization, arrangement, compromise or rights hereunder, under the Lock-Box Agreementwinding up, 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 one or more of a trustee, conservatorreceiver, receiver or liquidator in any insolvencyand manager, conservatorshipcustodian, 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 other person with similar person in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating powers with respect 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 unless such proceeding or step is being contested in good faith by the Seller to repurchase any Receivable as required by Section 2.4; orServicer;
(viid) Any representation, warranty or statement of the Servicer (ceases to carry on a revolving credit card business except those not applicable to Backup Servicer if it becomes Servicer hereunder) made in this Agreement or any certificate, report or other writing delivered pursuant hereto shall prove to be incorrect in any material respect as the course of the time when the same shall have been made and, within 30 days after written notice thereof shall have been given to the Servicer or the Servicer otherwise has actual knowledge thereof, the circumstances or condition carrying out a transaction in respect of which such representation, warranty the conditions of Section 9.4 or statement was incorrect shall not Section 9.5 of the Pooling and Servicing Agreement are observed and performed; and
(e) if CT Bank is the Servicer and a Standby Servicer and an Independent Investment Advisor have been eliminated or otherwise cured; orappointed and have agreed to act under Section 9.2, the Independent Investment Advisor notifies the Series 2019-1 Co-Owner, the Administrator and CT Bank in writing that:
(viiii) Either of the Servicer or the Depositor shall consolidate or merge with or into any other Person other than as contemplated in Section 5.2; or
(ix) Any failure by the Servicer to deliver the reports described in Article IV of this Agreement which remains uncured for three Business Days after the date on which such failure commences; providedits reasonable opinion, however that the period within which Servicer shall deliver such reports shall be extended to such longer period as is appropriate in the event of there has been 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 an obligation of $5,000,000 or greater) of the Servicer or any "event of default", "early amortization event" or similar event under any indenture, facility or agreement to which the Servicer 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 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 Servicer since December 31date on which the Independent Investment Advisor became aware of such material adverse change, 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; orand
(xiiii) A default or breach shall occur under any other agreementas a result of such material adverse change, document or instrument to which 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 is a party or by which the Servicer or its property is bound that is not cured within any applicable grace period thereforStandby Servicer, and such default or breach (i) involves accordingly, the failure to make any payment when due Independent Investment Advisor recommends in writing that CT Bank be so replaced as Servicer; provided, however, that no servicer termination event in respect of any Indebtedness the Series 2019-1 Ownership Interest will be considered to have occurred if, on or before the fifth (5th) Business Day occurring after such recommendation, the holders of the Servicer in excess of five percent (5%) of Series 2019-1 Notes provide the Servicer's Tangible Net Worth, or (ii) causes, or permits any holder of Issuer Trustee with a Noteholder Direction to the effect that such Indebtedness or a trustee or agent to cause, Indebtedness or a portion thereof in excess of five percent (5%) of the Servicer's Tangible Net Worth to become due prior to its stated 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
(xiii) the Servicer (excluding Backup Servicer if it becomes the Servicer) ceases to own at least 100% of the Depositor; or
(xiv) Any failure by the Servicer to meet the financial covenants contained in Section 4.21; or
(xv) The Agent event shall not have delivered give rise to a Servicer Extension Notice pursuant to Section 4.23servicer termination event for these purposes.
(b2) then, and A servicer termination event in each and every such case, so long as a Servicer Termination Event shall not have been remedied within the applicable grace period, the Indenture Trustee shall, at the direction respect of the Agent on behalf of the Majority Noteholders, by notice then given in writing to the Servicer, terminate all of the rights and obligations of the Servicer as servicer under this Agreement. Any such notice to the Servicer shall also Series 2019-1 Ownership Interest may be given to the Seller, the Issuer, the Depositor and the Backup Servicer. On or after the receipt waived 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 attorneySeries 2019-in1 Co-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 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 to the 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 expensesOwner.
Appears in 1 contract
Sources: Series Purchase Agreement