Servicer Termination Events. If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing: (a) any failure by the Servicer: (x) to deposit to the Collection Account (A) any amount required to be deposited therein by the Servicer (other than any such failure resulting from an administrative or technical error of the Servicer in the amount so deposited); or (B) within one (1) Business Day after the Servicer becomes aware that, as a result of an administrative or technical error of the Servicer, any amount previously deposited by the Servicer to the Collection Account was less than the amount required to be deposited therein by the Servicer, the amount of such shortfall; or (y) to deliver to the Collateral Agent the Monthly Report on the related Determination Date; (b) any failure on the part of the Servicer duly to observe or to perform any covenants or agreements of the Servicer set forth in the Transaction Documents that results in a Material Adverse Effect or any representation or warranty of the Servicer made in any Transaction Document or in any certificate or other writing delivered pursuant to any Transaction Document proving to have been incorrect in any material respect as of the time when the same shall have been made, which such failure or default, if capable of cure, shall continue unremedied for a period of forty-five (45) days (or a longer period, not in excess of ninety (90) days as may be reasonably necessary to remedy such default, if the default is capable of remedy within ninety (90) days or less, and the Servicer delivers an Officer's Certificate to the Deal Agent, the Backup Servicer and the Collateral Agent to the effect that it has commenced, or will promptly commence and diligently pursue, all reasonable efforts to remedy the default) after (x) there shall have been given written notice of such failure or default, requiring the same to be remedied, (1) to the Servicer, by the Collateral Agent or the Deal Agent, or (2) to the Servicer by the Collateral Agent at the direction of the Deal Agent or (y) discovery of such failure or default by an officer of the Servicer; (c) the entry of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, receiver, or liquidator for the Servicer or any of its subsidiaries in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings, or for the winding up or liquidation of its respective affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the entry of any decree or order for relief in respect of the Servicer or any of its subsidiaries under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, or similar law, whether now or hereafter in effect, which decree or order for relief continues unstayed and in effect for a period of 60 consecutive days; (d) the consent by the Servicer or any of its subsidiaries to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings of or relating to the Servicer or any of its subsidiaries or relating to substantially all of its property; or the admission by the Servicer or any of its subsidiaries in writing of its inability to pay its debts generally as they become due, the filing by the Servicer or any of its subsidiaries of a petition to take advantage of any applicable insolvency or reorganization statute, the making by the Servicer or any of its subsidiaries of an assignment for the benefit of its creditors, or the voluntary suspension by the Servicer or any of its subsidiaries of payment of its obligations; (e) any delegation of the Servicer's duties that is not permitted by Section 7.1; (f) any financial information related to the Collateral reasonably requested by the Deal Agent, the Collateral Agent or any Lender as provided herein is not reasonably provided as requested; (g) 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 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; (h) the Servicer shall fail to pay any principal of or premium or interest on any indebtedness in an aggregate outstanding principal amount of $50,000,000 or more (“Material Debt”), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material Debt; or any other default under any agreement or instrument relating to any Material Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Material Debt; or any such Material Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; (i) a Termination Event shall have occurred and such Termination Event has not been waived by the Deal Agent; (j) the Originator or Servicer, if Credit Acceptance is the Servicer, fails to pay when due (or no later than the next Payment Date after the Servicer becomes aware that such payment was not made) the Release Price in excess of $100,000; or (k) 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 not less than 2.0 to 1.0, or (2) on a Consolidated (as defined in the Credit Agreement) basis, the Servicer fails to maintain, as of the end of each fiscal period as shown in the most recent financial statement delivered by the Servicer pursuant to Section 5.1(k)(ii) and Section 5.1(k)(iii), as applicable, a ratio of Consolidated Funded Debt (as defined in the Credit Agreement) as of such date minus Unrestricted Cash (as defined in the Credit Agreement) as of such date (including in the calculation thereof, for purposes hereof, all Funded Debt (as defined in the Credit Agreement) incurred by a Special Purpose Subsidiary (as defined in the Credit Agreement), whether or not included therein under GAAP) to the Servicer’s Consolidated Tangible Net Worth (as defined in the Credit Agreement) as of such date equal to or less than 5.60 to 1.0; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Event shall not have been remedied, within any applicable cure period prior to the date of the Servicer Termination Notice (defined below), the Deal Agent may, or at the direction of the Required Lenders, by written notice to the Servicer (with a copy to the Backup Servicer and the Collateral Agent) (a “Servicer Termination Notice”) shall, terminate all of the rights and obligations of the Servicer as Servicer under this Agreement.
Appears in 1 contract
Sources: Loan and Security Agreement (Credit Acceptance Corp)
Servicer Termination Events. If any (a) In case one or more of the following events (each a “"Servicer Termination Event”") by the Servicer shall occur and be continuing, that is to say:
(ai) any failure by the Servicer: (x) Servicer to deposit remit when due to the Collection Account (A) Noteholders, or to the Indenture Trustee for the benefit of the Noteholders and Hedge Counterparties, or to the Owner Trustee for the benefit of the Certificateholders, any amount payment required to be deposited therein made under the terms of the Basic Documents, it being understood that the Servicer shall not be responsible for the failure of either the Owner Trustee or the Indenture Trustee to remit funds that were received by the Servicer (other than any such failure resulting Owner Trustee or the Indenture Trustee from an administrative or technical error of the Servicer in accordance with the amount so deposited)Basic Documents; or (B) within one (1) Business Day after the Servicer becomes aware that, as a result of an administrative or technical error of the Servicer, any amount previously deposited by the Servicer to the Collection Account was less than the amount required to be deposited therein by the Servicer, the amount of such shortfall; or (y) to deliver to the Collateral Agent the Monthly Report on the related Determination Date;or
(bii) any failure on the part of by the Servicer duly to observe or to perform perform, in any covenants material respect, any other covenants, obligations or agreements of the Servicer as set forth in the Transaction Documents that results in a Material Adverse Effect Basic Documents, or any representation or warranty of the Servicer made in this Agreement or any Transaction other Basic Document or in any certificate or other writing delivered pursuant to any Transaction Document proving thereto or in connection therewith proves to have been incorrect in any when made and has a material respect as adverse effect on the rights of the time when the same shall have been madeNoteholders, which such failure or default, if capable of cure, shall continue continues unremedied for a period of forty-five (45) 30 days (or a longer period, not in excess of ninety (90) days as may if such failure can be reasonably necessary to remedy such default, if the default is capable of remedy within ninety (90) days or less, and the Servicer delivers an Officer's Certificate to the Deal Agent, the Backup Servicer and the Collateral Agent to the effect that it has commenced, or will promptly commence and diligently pursue, all reasonable efforts to remedy the defaultremedied) after the earlier to occur of (xA) there shall have been given the date on which written notice of such failure or defaultfailure, requiring the same to be remedied, (1) shall have been given to the Servicer, by the Collateral Agent or the Deal Agent, or (2) to a Responsible Officer of the Servicer by the Collateral Agent at the direction of the Deal Agent Indenture Trustee or (y) discovery of such failure or default by an officer to a Responsible Officer of the Servicer;, and the Indenture Trustee by any Noteholder, Certificateholder or Hedge Counterparty or (B) the date a Responsible Officer of the Servicer receives actual knowledge of such failure; or
(ciii) the entry of a decree or order by of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, receiver, conservator or receiver or liquidator for the Servicer or any of its subsidiaries in any insolvency, readjustment of debt, marshalling marshaling of assets and liabilities, liabilities or similar proceedings, or for the winding winding-up or liquidation of its respective affairs, shall have been entered against the Servicer and the continuance of any such decree or order shall have remained in force, undischarged or unstayed and in effect for a period of 60 consecutive days or the entry of any decree or order for relief in respect of 30 days; or
(iv) the Servicer or any of its subsidiaries under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, or similar law, whether now or hereafter in effect, which decree or order for relief continues unstayed and in effect for a period of 60 consecutive days;
(d) the shall consent by the Servicer or any of its subsidiaries to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling marshaling of assets and liabilities, liabilities or similar proceedings of or relating to the Servicer or any of its subsidiaries or relating to all or substantially all of its the Servicer's property; or the admission by or
(v) the Servicer or any of its subsidiaries shall admit in writing of its inability to pay its debts generally as they become due, the filing by the Servicer or any of its subsidiaries of file a petition to take advantage of any applicable insolvency or reorganization statute, the making by the Servicer or any of its subsidiaries of make an assignment for the benefit of its creditors, or the voluntary suspension by the Servicer or any of its subsidiaries of voluntarily suspend payment of its obligations;
(e) any delegation of the Servicer's duties that is not permitted by Section 7.1;
(f) any financial information related to the Collateral reasonably requested by the Deal Agent, the Collateral Agent or any Lender as provided herein is not reasonably provided as requested;
(g) 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 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;
(h) the Servicer shall fail to pay any principal of or premium or interest on any indebtedness in an aggregate outstanding principal amount of $50,000,000 or more (“Material Debt”), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material Debt; or any other default under any agreement or instrument relating to any Material Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Material Debt; or any such Material Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof;
(i) a Termination Event shall have occurred and such Termination Event has not been waived by the Deal Agent;
(j) the Originator or Servicer, if Credit Acceptance is the Servicer, fails to pay when due (or no later than the next Payment Date after the Servicer becomes aware that such payment was not made) the Release Price in excess of $100,000; or
(kvi) without the prior written consent of the Majority Noteholders, the Servicer agrees or consents to, or otherwise permits to occur, any amendment, modification, change, supplement or recision of or to the Servicer or the Credit and Collection Policy, in whole or in part, in any manner that would have a material adverse effect on the Commercial Loans; or
(vii) failure by the Servicer to observe or perform the Credit and Collection Policy regarding the servicing of the Commercial Loans in any manner that would have a material adverse effect on the Commercial Loans; or
(viii) either (1A) on a Consolidated (as defined ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ceases to be actively involved in the Credit Agreement) basis, credit decisions of the Servicer fails (unless waived by the Majority Noteholders, which waiver may be granted or withheld in their sole direction) or (B) any of the following ceases to maintainbe actively involved in the management of the Servicer (unless waived by the Majority Noteholders, which waiver will not be unreasonably withheld): ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇; or
(ix) the consolidated net worth of the Servicer (inclusive of all committed capital), as measured as of the end of each any 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)quarter of Servicer, as applicable, a Fixed Charge Coverage Ratio (as defined in the Credit Agreement) of not shall be less than 2.0 to 1.0, or the greater of (2a) on a Consolidated $115,000,000 and (as defined in the Credit Agreementb) basis, the Servicer fails to maintain, as 15% of the end aggregate outstanding principal balance of each fiscal period as shown in the most recent financial statement delivered commercial loans that are being serviced by the Servicer pursuant to Section 5.1(k)(ii) and Section 5.1(k)(iii), as applicable, a ratio are owned by Servicer or an Affiliate of Consolidated Funded Debt (as defined in the Credit Agreement) as of such date minus Unrestricted Cash (as defined in the Credit Agreement) as of such date Servicer (including MCG Master Trust).
(b) then, and in the calculation thereof, for purposes hereof, all Funded Debt (as defined in the Credit Agreement) incurred by a Special Purpose Subsidiary (as defined in the Credit Agreement), whether or not included therein under GAAP) to the Servicer’s Consolidated Tangible Net Worth (as defined in the Credit Agreement) as of each and every such date equal to or less than 5.60 to 1.0; then notwithstanding anything herein to the contrarycase, so long as any such a Servicer Termination Event shall not have been remedied, within any applicable cure period prior to the date of the Servicer Termination Notice (defined below), the Deal Agent may, or at the direction of the Required LendersMajority Noteholders, by written notice in writing to the Servicer (except with a copy respect to the Backup Servicer (iii), (iv) and the Collateral Agent(v) (a “Servicer Termination Notice”for which no notice is required) shallmay, in addition to whatever rights such Noteholders may have at law or equity including damages, injunctive relief and specific performance, in each case, immediately be withheld in its sole discretion) terminate all of the rights and obligations of the Servicer under this Agreement and in and to the Commercial Loans and the proceeds thereof, as Servicer. Upon such receipt by the Servicer of a written notice from the Majority Noteholders stating that they or it intend to terminate the Servicer as a result of such Servicer Termination Event, all authority and power of the Servicer under this Agreement, whether with respect to the Commercial Loans or otherwise, shall, subject to Section 9.02, pass to and be vested in the Indenture Trustee and the Indenture Trustee is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of the Commercial Loans and related documents.
Appears in 1 contract
Servicer Termination Events. If any one of the following events (a “Servicer Termination Event”"SERVICER TERMINATION EVENTS") shall occur and be continuing:
(a) any failure by the Servicer: (x) to deposit to the Collection Account (A) any amount required to be deposited therein by Seller or the Servicer (other than if BusLease or an Affiliate thereof) shall fail to make any such failure resulting from an administrative payment or technical error of deposit required hereunder on the Servicer in the amount so deposited); or (B) within one (1) first Business Day after the Servicer becomes aware that, as a result of an administrative or technical error of the Servicer, any amount previously deposited by the Servicer to the Collection Account was less than the amount required to be deposited therein by the Servicer, the amount of such shortfalldue date thereof; or (y) to deliver to the Collateral Agent the Monthly Report on the related Determination Date;or
(b) any failure on the part of the Servicer duly to observe or to perform any covenants or agreements of the Servicer set forth in the Transaction Documents that results in a Material Adverse Effect or any representation or warranty of made or deemed made by the Seller, the Servicer made (if BusLease or an Affiliate thereof), any Transferor or Motor Coach (or any of their respective Responsible Officers) in this Agreement or any Transaction Related Document or in any certificate or other writing written report delivered by any of them pursuant to any Transaction Document proving hereto shall prove to have been incorrect or untrue in any material respect as when made or deemed made or delivered, the effect of which is to materially adversely affect the Purchaser's interest in, or the collectibility of, the Purchased Receivables; PROVIDED, HOWEVER, that the breach of any of the time when representations or warranties contained in SECTION 4.01(n), (o), (q), (r), (s) (but only to the same extent that such representation or warranty relates to a Purchased Receivable), (v), (x), (y), (cc) or (ff) shall have been made, which such failure or default, if capable of cure, shall continue unremedied for not be a period of forty-five (45) days (or a longer period, not in excess of ninety (90) days as may be reasonably necessary to remedy such default, Servicer Termination Event hereunder if the default is capable of remedy within ninety (90) days Seller or less, and the Servicer delivers an Officer's Certificate to the Deal Agent, the Backup Servicer and the Collateral Agent to the effect that it has commenced, or will promptly commence and diligently pursue, all reasonable efforts to remedy the default) after (x) there shall have been given written notice of such failure or default, requiring the same to be remedied, (1) to the Servicer, by as the Collateral Agent or the Deal Agentcase may be, or (2shall have complied with SECTION 2.03(g) to the Servicer by the Collateral Agent at the direction of the Deal Agent or (y) discovery of such failure or default by an officer of the Servicer;with respect thereto; or
(c) the entry of a decree Seller, the Servicer (if BusLease or order by a court an Affiliate thereof) any Transferor or agency Motor Coach shall fail to perform or supervisory authority having jurisdiction observe any term, covenant or agreement contained in this Agreement or any Related Document on its part to be performed or observed and any such failure shall materially adversely affect the premises for the appointment of a conservator, receiverPurchaser's interest in, or liquidator for the collectibility of, the Purchased Receivables; PROVIDED, HOWEVER, that the failure to perform or observe any term, covenant or agreement contained in SECTION 5.03(a) shall not be a Servicer Termination Event hereunder if the Seller or the Servicer or any of its subsidiaries in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings, or for the winding up or liquidation of its respective affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the entry of any decree or order for relief in shall have complied with SECTION 2.03(g) with respect of the Servicer or any of its subsidiaries under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, or similar law, whether now or hereafter in effect, which decree or order for relief continues unstayed and in effect for a period of 60 consecutive days;thereto; or
(d) the consent by Seller, the Servicer (if BusLease or an Affiliate thereof), any Transferor or Motor Coach shall (i) default in making any payment of principal of any Indebtedness on the scheduled or original due date beyond the period of grace, if any, with respect thereto; or (ii) default in making any payment of any interest on such Indebtedness beyond the grace period, if any, provided in the instrument or agreement under which such Indebtedness was created; or (iii) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder or beneficiary ) to cause, with the giving of notice if required, such Indebtedness to become due prior to its subsidiaries stated maturity or to become payable; PROVIDED, that, in each case, other than with respect to the Seller, such Indebtedness is in excess of $5,000,000; or
(e) any assets of the Seller, the Servicer (if BusLease or an Affiliate thereof), any Transferor or Motor Coach shall be attached, seized, levied upon or subjected to a writ or distress warrant, or come within the possession of any receiver, trustee, custodian or assignee for the benefit of creditors of any such Person and such condition continues for thirty (30) days or more; PROVIDED, that, in each case, other than with respect to the Seller, the aggregate book value of such assets is in excess of $1,000,000; or
(f) a case or proceeding shall have been commenced against any of the Seller, the Servicer (if BusLease or an Affiliate thereof), any Transferor or Motor Coach seeking a decree or order in respect of any such Person (i) under Title 11 of the United States Code, as now constituted or hereafter amended or any other applicable federal, state or foreign bankruptcy or other similar law, (ii) appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for any such Person or of any substantial part of any such Person's assets, or (iii) ordering the winding-up or liquidation of the affairs of any such Person, 72 PROVIDED that if such case or proceeding is not commenced against the Seller, then a Servicer Termination Event shall not occur under this SECTION 7.01(f) or (g) unless such case or proceeding shall remain undismissed or unstayed for sixty (60) days or more or such court shall enter a decree or order granting the relief sought in such case or proceeding; or
(g) any of the Seller, the Servicer (if BusLease or an Affiliate thereof), any Transferor or Motor Coach (i) shall file a petition seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other applicable federal, state or foreign bankruptcy or other similar law, (ii) shall fail to contest in a timely and appropriate manner or shall consent to the institution of proceedings thereunder or to the filing of any such petition or to the appointment of or taking possession by a conservator custodian, receiver, liquidator, assignee, trustee or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, sequestrator (or similar proceedings of or relating to the Servicer or any of its subsidiaries or relating to substantially all of its property; or the admission by the Servicer or any of its subsidiaries in writing of its inability to pay its debts generally as they become due, the filing by the Servicer or any of its subsidiaries of a petition to take advantage official) of any applicable insolvency such Person or reorganization statuteof any substantial part of any such Person's assets, the making by the Servicer or any of its subsidiaries of (iii) shall make an assignment for the benefit of its creditors, or the voluntary suspension by the Servicer or (iv) shall take any corporate action in furtherance of any of the foregoing, or (v) shall admit in writing its subsidiaries of payment of inability to, or shall be generally unable to, pay its obligations;debts as such debts become due; or
(eh) any delegation of the Servicer's duties that is not permitted by Section 7.1;
(f) any financial information related to the Collateral reasonably requested by the Deal Agent, the Collateral Agent a final judgment or any Lender as provided herein is not reasonably provided as requested;
(g) the rendering against the Servicer of one or more final judgments, decrees or orders judgments for the payment of money not fully covered by insurance in excess of United States $50,000,000 5,000,000 (net of insurance coverage) in the aggregateaggregate at any time outstanding shall be rendered against the Servicer (if BusLease or an Affiliate thereof), any Transferor or Motor Coach and the continuance of such judgmentsame shall not, decree or order unsatisfied and in effect for any period of more than 60 consecutive within thirty (30) days without a stay of execution;
(h) the Servicer shall fail to pay any principal of or premium or interest on any indebtedness in an aggregate outstanding principal amount of $50,000,000 or more (“Material Debt”), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace periodentry thereof, if any, specified in the agreement have been discharged or instrument relating to such Material Debt; execution thereof stayed or any other default under any agreement or instrument relating to any Material Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to acceleratebonded pending appeal, 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) not have been discharged prior to the stated maturity thereof;expiration of any such stay; or
(i) a Termination Event any final judgment or order for the payment of money shall be rendered against the Seller, and the same shall not have occurred and such Termination Event has not been waived discharged thereof by full payment prior to the Deal Agent;expiration of any period for filing appeal; or
(j) the Originator any Related Document or Servicerany material provision of any thereof shall for any reason terminate or otherwise cease to be valid, if Credit Acceptance is the Servicer, fails to pay when due binding and enforceable in accordance with its terms (or no later the Seller, any Affiliate thereof or any other party to any Related Document (other than the next Payment Date after Administrative Agent or the Servicer becomes aware Purchaser) shall challenge the enforceability of any Related Document or shall assert in writing, or engage in any action or inaction based on any such assertion, that such payment was any Related Document or any provision of any thereof has terminated or ceased to be or otherwise is not madevalid, binding and enforceable in accordance with its terms), or any security or ownership interest created under any Related Documents shall cease to be a valid and perfected first priority security or ownership interest or Lien (except as otherwise permitted herein or therein) the Release Price in excess of $100,000any Purchased Receivables or property purported to be covered thereby; or
(k) either the Seller shall not be a 100% direct or indirect wholly-owned Subsidiary of MCII Coaches, Inc. or the Servicer (1if BusLease or an Affiliate thereof) on shall not be a Consolidated 100% direct or indirect wholly-owned Subsidiary of Motor Coach; or
(as defined l) any change in ownership of any of the MCII Group or any change in their respective roles under this Agreement or any other Related Document that conflicts with the "Assumptions of Fact" section in the Credit Agreementopinion of Skadden, Arps, Slate Meager & ▇▇▇▇, dated the date hereof, relating to certain nonconsolidation matters.
(m) basisany Governmental Authority (including the IRS or the PBGC) shall file notice of a Lien with regard to any of the assets of the Seller, the Servicer fails to maintain(if BusLease or an Affiliate thereof), any Transferor or Motor Coach; or
(n) S&P's long-term issuer rating or ▇▇▇▇▇'▇ issuer rating of Motor Coach, or similar indication of the long-term, unsecured and unsubordinated indebtedness of Motor Coach shall have been withdrawn or downgraded below "B" or "B2" by S&P or ▇▇▇▇▇'▇, as the case may be; or
(i) any Transfer Agreement shall for any reason fail to constitute the transfer to the Seller of the end legal and equitable title to, and ownership of, the Receivables, Contracts and Financed Vehicles purported to be transferred thereunder, or (ii) a default or breach shall occur under any other provision of each any Transfer Agreement or under any other provision of any other Related Document and the same shall remain unremedied subject only to cure periods therein after written notice thereof shall have been given by Administrative Agent to the Seller; or
(i) the Four-Month Default Ratio shall at any time be greater than [**]%, (ii) the Four-Month Net Default Ratio shall at any time be greater than [**]%, (iii) the Recovery Rate shall at any time be less than [**]%, (iv) the Consolidated Senior Leverage Ratio shall at any time be greater than the Maximum Permitted Leverage Ratio for the fiscal period as shown in ending on March 31 most recently completed, (v) 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 Consolidated Fixed Charge Coverage Ratio (as defined in the Credit Agreement) of not shall at any time be less than 2.0 to 1.0the Minimum Permitted Fixed Charge Coverage Ratio for the fiscal period ending on March 31 most recently completed, or (2vi) the Delinquency Ratio shall at any time be greater than [**]%; or
(q) the sum of the Stated Amounts of the Transaction Letters of Credit PLUS the amount on a Consolidated (as defined deposit in the Cash Collateral Account shall be less than the Required Credit AgreementEnhancement and such deficiency shall not be cured within 30 days; or
(r) basisFSA shall be required to make a payment under the Policy; or
(s) any Insurance Agreement Event of Default shall have occurred and be continuing; then, the Servicer fails to maintainControlling Party shall, 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)(iiupon at least five (5) and Section 5.1(k)(iii), as applicable, a ratio of Consolidated Funded Debt (as defined in the Credit Agreement) as of such date minus Unrestricted Cash (as defined in the Credit Agreement) as of such date (including in the calculation thereof, for purposes hereof, all Funded Debt (as defined in the Credit Agreement) incurred by a Special Purpose Subsidiary (as defined in the Credit Agreement), whether or not included therein under GAAP) to the Servicer’s Consolidated Tangible Net Worth (as defined in the Credit Agreement) as of such date equal to or less than 5.60 to 1.0; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Event shall not have been remedied, within any applicable cure period prior to the date of the Servicer Termination Notice (defined below), the Deal Agent may, or at the direction of the Required Lenders, by written Business Days' notice to the Servicer and the Seller (with a copy unless the Controlling Party determines in its sole discretion that it would be reasonably impractical or inadvisable to give such notice), remove the Servicer, appoint the Backup Servicer and (who shall assume the Collateral Agent) (a “Servicer Termination Notice”) shall, terminate all of the rights and obligations of the Servicer within thirty (30) days in accordance with SECTION 6.01(e)) or, if the Backup Servicer is in default under the Backup Servicing Agreement, any other Person as the new Servicer, take control of the Lockbox Accounts (by delivering to the Lockbox Banks a notice in substantially the form of Attachment A to EXHIBIT I), take control of the Blocked Accounts (as described in Section 2.06(d)), notify the Obligors of its interest in the Purchased Receivables and exercise all other incidences of ownership in the Purchased Receivables. In addition to the rights and remedies described above, upon the occurrence of a Servicer Termination Date, the Purchaser or the Administrative Agent may, in its sole discretion, by notice to the Seller, declare the Facility Termination Date to have occurred (in which case the Facility Termination Date shall be deemed to have occurred); PROVIDED, that automatically upon the occurrence of any event (without any requirement for the passage of time or the giving of notice) described in Section 7.01(f) or (g), the Facility Termination Date shall occur. Upon any such declaration or designation or upon any such automatic termination, the Servicer shall prepare and forward to the Purchaser the Administrative Agent and the Backup Servicer, within one Business Day after the Facility Termination Date, a Monthly Report relating to the Purchased Receivables immediately preceding the Facility Termination Date, and (ii) the Purchaser and the Administrative Agent shall have, in addition to the rights and remedies which they may have under this Agreement, all other rights and remedies provided after default under the UCC and under other applicable law, which rights and remedies shall be cumulative. Following the occurrence of a Servicer Termination Event and the appointment of a successor Servicer, the Purchaser shall have the right, with the consent of FSA, to remove and, if requested by FSA, shall remove any successor Servicer and to take the other actions described above at any time in its sole discretion; PROVIDED, HOWEVER, that the consent of FSA shall not be required and the instructions of FSA need not be followed if an FSA Default has occurred.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Motor Coach Industries International Inc)
Servicer Termination Events. If (a) Servicer’s right to service pursuant to each Servicing Agreement shall terminate upon the occurrence of any one of the following events (each a “Servicer Termination Event”) shall occur and be continuing:):
(ai) any failure by the Servicer: An Event of Default;
(xii) This Servicer Notice is deemed unenforceable;
(iii) Servicer materially breaches or fails to deposit to the Collection Account comply with (A) the Servicing Agreement and such breach or failure continues uncured or unremedied for a period of thirty (30) calendar days or Servicer fails to diligently pursue a cure or remedy (without regard to any amount required to be deposited therein by the Servicer (other than any such failure resulting from an administrative or technical error of the Servicer in the amount so deposited); cure periods) or (B) this Servicer Notice (relating to the deposit or transfer of funds) and such breach or failure continues uncured or unremedied for a period of two (2) Business Days (without regard to any other cure periods), in each case, after a Responsible Officer of a Seller Party or Servicer first learns of it;
(iv) Servicer is unable to comply with the eligibility requirements, or ceases to be an approved servicer, of, in each case, GNMA, HUD or VA;
(v) Servicer fails to make any required servicing advance, to the extent that such failure would be reasonably likely to impair FHA Mortgage Insurance coverage or VA Loan Guaranty Agreement coverage, with respect to the principal portion of any Mortgage Loan or would be reasonably likely to give rise to a liability to HUD, FHA or VA, as determined by Administrative Agent in its good faith discretion;
(vi) Servicer fails to make a required deposit to the Inbound Account (i) which is not cured within one (1) Business Day after of Seller Party’s knowledge of such failure, or (ii) to the extent such failure or failures occur on multiple occasions (regardless of any subsequent cure);
(vii) Servicer becomes aware that, provides a notice of its intent to resign as a result of an administrative or technical error Servicer of the ServicerMortgage Loans and REO Property and a new Servicer reasonably acceptable to Administrative Agent is not promptly appointed;
(viii) Servicer is subject to FHA, HUD or VA fees or penalties which have not been paid or is subject to a set-off by any amount previously deposited by the of FHA, HUD or VA which (A) is reasonably likely to result in a Servicer to the Collection Account was less than the amount required to be deposited therein by the Servicer, the amount of such shortfall; Material Adverse Effect or (yB) to deliver to failure or failures occur on a persistent and material basis after notice or knowledge thereof (regardless of any subsequent cure); or
(ix) There shall occur a Servicer Material Adverse Effect, in the Collateral Agent the Monthly Report on the related Determination Date;determination of Administrative Agent. LEGAL02/37648106v16
(b) any failure on Upon the part of the Servicer duly to observe or to perform any covenants or agreements of the Servicer set forth in the Transaction Documents that results in a Material Adverse Effect or any representation or warranty of the Servicer made in any Transaction Document or in any certificate or other writing delivered pursuant to any Transaction Document proving to have been incorrect in any material respect as of the time when the same shall have been made, which such failure or default, if capable of cure, shall continue unremedied for a period of forty-five (45) days (or a longer period, not in excess of ninety (90) days as may be reasonably necessary to remedy such default, if the default is capable of remedy within ninety (90) days or less, and the Servicer delivers an Officer's Certificate to the Deal Agent, the Backup Servicer and the Collateral Agent to the effect that it has commenced, or will promptly commence and diligently pursue, all reasonable efforts to remedy the default) after (x) there shall have been given written notice of such failure or default, requiring the same to be remedied, (1) to the Servicer, by the Collateral Agent or the Deal Agent, or (2) to the Servicer by the Collateral Agent at the direction of the Deal Agent or (y) discovery of such failure or default by an officer of the Servicer;
(c) the entry occurrence of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, receiver, or liquidator for the Servicer or any of its subsidiaries in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings, or for the winding up or liquidation of its respective affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the entry of any decree or order for relief in respect of the Servicer or any of its subsidiaries under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, or similar law, whether now or hereafter in effect, which decree or order for relief continues unstayed and in effect for a period of 60 consecutive days;
(d) the consent by the Servicer or any of its subsidiaries to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings of or relating to the Servicer or any of its subsidiaries or relating to substantially all of its property; or the admission by the Servicer or any of its subsidiaries in writing of its inability to pay its debts generally as they become due, the filing by the Servicer or any of its subsidiaries of a petition to take advantage of any applicable insolvency or reorganization statute, the making by the Servicer or any of its subsidiaries of an assignment for the benefit of its creditors, or the voluntary suspension by the Servicer or any of its subsidiaries of payment of its obligations;
(e) any delegation of the Servicer's duties that is not permitted by Section 7.1;
(f) any financial information related to the Collateral reasonably requested by the Deal Agent, the Collateral Agent or any Lender as provided herein is not reasonably provided as requested;
(g) 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 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;
(h) the Servicer shall fail to pay any principal of or premium or interest on any indebtedness in an aggregate outstanding principal amount of $50,000,000 or more (“Material Debt”), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material Debt; or any other default under any agreement or instrument relating to any Material Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Material Debt; or any such Material Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof;
(i) a Termination Event shall have occurred and such Termination Event has not been waived by the Deal Agent;
(j) the Originator or Servicer, if Credit Acceptance is the Servicer, fails to pay when due (or no later than the next Payment Date after the Servicer becomes aware that such payment was not made) the Release Price in excess of $100,000; or
(k) 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 not less than 2.0 to 1.0, or (2) on a Consolidated (as defined in the Credit Agreement) basis, the Servicer fails to maintain, as of the end of each fiscal period as shown in the most recent financial statement delivered by the Servicer pursuant to Section 5.1(k)(ii) and Section 5.1(k)(iii), as applicable, a ratio of Consolidated Funded Debt (as defined in the Credit Agreement) as of such date minus Unrestricted Cash (as defined in the Credit Agreement) as of such date (including in the calculation thereof, for purposes hereof, all Funded Debt (as defined in the Credit Agreement) incurred by a Special Purpose Subsidiary (as defined in the Credit Agreement), whether or not included therein under GAAP) to the Servicer’s Consolidated Tangible Net Worth (as defined in the Credit Agreement) as of such date equal to or less than 5.60 to 1.0; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Event at the Request of Administrative Agent, Servicer shall not have been remedied, within any applicable cure period prior transfer the servicing to a successor servicer in accordance with the date terms of the Servicer Termination Notice (defined below), the Deal Agent may, or at the direction of the Required Lenders, by written notice to the Servicer (with a copy to the Backup Servicer and the Collateral Agent) (a “Servicer Termination Notice”) shall, terminate all of the rights and obligations of the Servicer as Servicer under this Servicing Agreement.
Appears in 1 contract
Servicer Termination Events. (a) If any one of the following events (a “Servicer Termination Event”) shall occur and be continuingcontinuing on any day:
(ai) any failure by the Servicer: Servicer to make any payment, transfer or deposit as required by this Agreement and such failure shall continue for two (x2) to deposit to the Collection Account Business Days;
(Aii) any amount required to be deposited therein by the Servicer (other than any such failure resulting from an administrative or technical error of the Servicer in the amount so deposited); or (B) within one (1) Business Day after the Servicer becomes aware that, as a result of an administrative or technical error of the Servicer, any amount previously deposited by the Servicer to give instructions or notice to the Collection Account was less than Borrower, any Managing Agent and/or the amount Administrative 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 instructions, notice or report is required to be deposited therein by made or given, as the Servicercase may be, under the amount terms of such shortfall; or (y) to deliver to the Collateral Agent the Monthly Report on the related Determination Datethis Agreement;
(biii) any failure on the part of the Servicer duly to observe or to perform in any material respect any other covenants or agreements of the Servicer set forth in the Transaction Documents that results in a Material Adverse Effect this Agreement or any representation or warranty other Transaction Document to which it is a party as Servicer that continues unremedied for a period of fifteen (15) days after the first to occur of (A) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Managing Agent or the Borrower and (B) the date on which the Servicer becomes or reasonably should have become aware thereof;
(iv) any representation, warranty or certification made by the Servicer in any Transaction Document this Agreement or in any certificate or other writing delivered pursuant to any Transaction Document proving this Agreement shall prove to have been false or incorrect in any material respect as of the time when the same shall have been made, which made and such failure or defaultfailure, if capable of susceptible to a cure, shall continue unremedied for a period of forty-five fifteen (4515) days after the first to occur of (or a longer period, not in excess of ninety (90i) days as may be reasonably necessary to remedy such default, if the default is capable of remedy within ninety (90) days or less, and the Servicer delivers an Officer's Certificate to the Deal Agent, the Backup Servicer and the Collateral Agent to the effect that it has commenced, or will promptly commence and diligently pursue, all reasonable efforts to remedy the default) after (x) there shall have been given date on which written notice of such failure or default, requiring the same to be remedied, (1) to the Servicer, by the Collateral Agent or the Deal Agent, or (2) remedied shall have been given to the Servicer by the Collateral Agent at the direction of the Deal Administrative Agent, any Managing Agent or the Borrower and (yii) discovery of such failure the date on which the Servicer becomes or default by reasonably should have become aware thereof;
(v) the Servicer shall fail to service the Transferred Loans in accordance with the Credit and Collection Policy;
(vi) an officer of Insolvency Event shall occur with respect to the Servicer;
(cvii) the entry of a decree or order by a court or agency or supervisory authority having jurisdiction in Servicer agrees to materially alter the premises for Credit and Collection Policy without the appointment of a conservator, receiver, or liquidator for the Servicer or any of its subsidiaries in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings, or for the winding up or liquidation of its respective affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the entry of any decree or order for relief in respect prior written consent of the Servicer or any of its subsidiaries under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, or similar law, whether now or hereafter in effect, which decree or order for relief continues unstayed and in effect for a period of 60 consecutive daysRequired Lenders;
(d) the consent by the Servicer or any of its subsidiaries to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings of or relating to the Servicer or any of its subsidiaries or relating to substantially all of its property; or the admission by the Servicer or any of its subsidiaries in writing of its inability to pay its debts generally as they become due, the filing by the Servicer or any of its subsidiaries of a petition to take advantage of any applicable insolvency or reorganization statute, the making by the Servicer or any of its subsidiaries of an assignment for the benefit of its creditors, or the voluntary suspension by the Servicer or any of its subsidiaries of payment of its obligations;
(e) any delegation of the Servicer's duties that is not permitted by Section 7.1;
(fviii) any financial or asset information related to the Collateral reasonably requested by the Deal Agent, the Collateral Administrative Agent or any Lender Managing Agent as provided herein is not reasonably provided as requestedrequested within five (5) Business Days (or such longer period as the Administrative Agent or such Managing Agent may consent to) of the receipt by the Servicer of such request;
(gix) the rendering against the Servicer of one a final judgment, decree or more final judgments, decrees or orders order for the payment of money in excess of United States U.S. $50,000,000 5,000,000 (individually or in the aggregate, ) and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than 60 30 consecutive days without a stay of execution;
(hx) the Servicer shall fail failure of the Performance Guarantor to pay make any principal of payment due with respect to aggregate recourse debt or premium or interest on any indebtedness in other obligations with an aggregate outstanding principal amount exceeding U.S. $1,000,000 or the occurrence of $50,000,000 any event or more (“Material Debt”), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material Debt; or any other default under any agreement or instrument relating to any Material Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect condition that would permit acceleration of such default recourse debt or other obligations if such event is to accelerate, or to permit the acceleration of, the maturity of such Material Debt; or any such Material Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereofcondition has not been waived;
(ixi) any Guarantor Event of Default shall occur;
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or a Termination Event shall have occurred material adverse change occurs with regard to the collectibility of the Transferred Loans, taken as a whole;
(xiii) any Change-in-Control of the Servicer is made without the prior written consent of the Borrower and such Termination Event has not been waived by the Deal Administrative Agent;
(jxiv) the Originator or Servicer, if Credit Acceptance is Performance Guarantor shall fail to maintain a minimum Net Worth equal to the Servicer, fails to pay when due sum of (or no later than i) $155,000,000 plus (ii) 50% of any equity and Subordinated Debt issued by the next Payment Date Performance Guarantor after the Servicer becomes aware that such payment was not madeEffective Date;
(xv) the Release Price in excess of $100,000Performance Guarantor shall fail to satisfy the RIC/BDC Requirements; or
(kxvi) either (1) on the Performance Guarantor shall pay any cash dividends; provided that the Performance Guarantor shall be permitted to pay cash dividends if the Servicer shall have caused the Performance Guarantor to have delivered a Consolidated (as defined certificate to the Administrative Agent, substantially in the Credit Agreementform of Exhibit G hereto, at least 10 Business Days prior to the making of any such cash dividend to the effect that (i) basis, the Servicer fails to maintain, as amount of the end declared dividend has been determined in good faith by the Board of each fiscal period as shown in Directors of the Performance Guarantor on the basis of the most recent current financial statement delivered information of the Performance Guarantor then available for the related period; (ii) the amount of the declared dividend does not exceed the net investment income and the net capital gain realized by the Servicer pursuant Performance Guarantor for the related period, based on the financial information referred to Section 5.1(k)(iiin clause (i) above; and Section 5.1(k)(iii), as applicable, a Fixed Charge Coverage Ratio (as defined in the Credit Agreement) of not less than 2.0 to 1.0, or (2) on a Consolidated (as defined in the Credit Agreement) basis, the Servicer fails to maintain, as of the end of each fiscal period as shown in the most recent financial statement delivered by the Servicer pursuant to Section 5.1(k)(ii) and Section 5.1(k)(iii), as applicable, a ratio of Consolidated Funded Debt (as defined in the Credit Agreement) as of such date minus Unrestricted Cash (as defined in the Credit Agreement) as of such date (including in the calculation thereof, for purposes hereof, all Funded Debt (as defined in the Credit Agreement) incurred by a Special Purpose Subsidiary (as defined in the Credit Agreement), whether or not included therein under GAAPiii) to the Servicer’s Consolidated Tangible Net Worth extent the declared dividend does not equal the net investment income and the net capital gain realized by the Performance Guarantor for the related period, the proposed dividend to be declared by the Performance Guarantor for the immediately ensuing period shall be either (as defined in x) reduced by the Credit Agreementamount such dividend for the immediately preceding period exceeded the net investment income and the net capital gain realized by the Performance Guarantor for the immediately preceding period or (y) as of increased by the amount such date equal to dividend or distribution for the immediately preceding period was less than 5.60 to 1.0the net investment income and the net capital gains realized by the Performance Guarantor for the immediately preceding period; then then, notwithstanding anything herein to the contrary, so long as any such Servicer Termination Event Events shall not have been remedied, within remedied at the expiration of any applicable cure period prior to the date of the Servicer Termination Notice (defined below)period, the Deal Administrative Agent may, or at the direction of the Required LendersLenders shall, by written notice to the Servicer (with a copy to and the Backup Servicer and the Collateral Agent) (a “Servicer Termination Notice”), subject to the provisions of Section 7.19, either (i) shall, terminate all of the rights and obligations of the Servicer as Servicer under this AgreementAgreement or (ii) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and simultaneously reappoint the Servicer for a period not to exceed one month (subject to renewal at the sole discretion of the Administrative Agent, acting at the direction of the Required Lenders), at the expiration of which appointment the Servicer’s rights and obligations hereunder shall automatically terminate without further action on the part of any party hereto. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
Appears in 1 contract
Sources: Credit Agreement (Gladstone Investment Corporation\de)
Servicer Termination Events. (a) If any one of the following events (a “Servicer Termination Event”) shall occur and be continuingcontinuing on any day:
(ai) any failure by the Servicer: Servicer to make any payment, transfer or deposit as required by this Agreement and such failure shall continue for two (x2) to deposit to the Collection Account Business Days;
(Aii) any amount required to be deposited therein by the Servicer (other than any such failure resulting from an administrative or technical error of the Servicer in the amount so deposited); or (B) within one (1) Business Day after the Servicer becomes aware that, as a result of an administrative or technical error of the Servicer, any amount previously deposited by the Servicer to give instructions or notice to the Collection Account was less than Borrower, any Managing Agent and/or the amount Administrative 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 instructions, notice or report is required to be deposited therein by made or given, as the Servicercase may be, under the amount terms of such shortfall; or (y) to deliver to the Collateral Agent the Monthly Report on the related Determination Datethis Agreement;
(biii) any failure on the part of the Servicer duly to observe or to perform in any material respect any other covenants or agreements of the Servicer set forth in the Transaction Documents that results in a Material Adverse Effect this Agreement or any representation or warranty other Transaction Document to which it is a party as Servicer that continues unremedied for a period of fifteen (15) days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Managing Agent or the Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof;
(iv) any representation, warranty or certification made by the Servicer in any Transaction Document this Agreement or in any certificate or other writing delivered pursuant to any Transaction Document proving this Agreement shall prove to have been false or incorrect in any material respect as of the time when the same shall have been made, which made and such failure or defaultfailure, if capable of susceptible to a cure, shall continue unremedied for a period of forty-five fifteen (4515) days after the first to occur of (or a longer period, not in excess of ninety (90i) days as may be reasonably necessary to remedy such default, if the default is capable of remedy within ninety (90) days or less, and the Servicer delivers an Officer's Certificate to the Deal Agent, the Backup Servicer and the Collateral Agent to the effect that it has commenced, or will promptly commence and diligently pursue, all reasonable efforts to remedy the default) after (x) there shall have been given date on which written notice of such failure or default, requiring the same to be remedied, (1) to the Servicer, by the Collateral Agent or the Deal Agent, or (2) remedied shall have been given to the Servicer by the Collateral Agent at the direction of the Deal Administrative Agent, any Managing Agent or the Borrower and (yii) discovery of such failure the date on which the Servicer becomes or default by reasonably should have become aware thereof;
(v) the Servicer shall fail to service the Transferred Loans in accordance with the Credit and Collection Policy;
(vi) an officer of Insolvency Event shall occur with respect to the Servicer;
(cvii) the entry of a decree or order by a court or agency or supervisory authority having jurisdiction in Servicer agrees to materially alter the premises for Credit and Collection Policy without the appointment of a conservator, receiver, or liquidator for the Servicer or any of its subsidiaries in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings, or for the winding up or liquidation of its respective affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the entry of any decree or order for relief in respect prior written consent of the Servicer or any of its subsidiaries under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, or similar law, whether now or hereafter in effect, which decree or order for relief continues unstayed and in effect for a period of 60 consecutive daysRequired Committed Lenders;
(d) the consent by the Servicer or any of its subsidiaries to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings of or relating to the Servicer or any of its subsidiaries or relating to substantially all of its property; or the admission by the Servicer or any of its subsidiaries in writing of its inability to pay its debts generally as they become due, the filing by the Servicer or any of its subsidiaries of a petition to take advantage of any applicable insolvency or reorganization statute, the making by the Servicer or any of its subsidiaries of an assignment for the benefit of its creditors, or the voluntary suspension by the Servicer or any of its subsidiaries of payment of its obligations;
(e) any delegation of the Servicer's duties that is not permitted by Section 7.1;
(fviii) any financial or asset information related to the Collateral reasonably requested by the Deal Agent, the Collateral Administrative Agent or any Lender Managing Agent as provided herein is not reasonably provided as requestedrequested within five (5) Business Days (or such longer period as the Administrative Agent or such Managing Agent may consent to) of the receipt by the Servicer of such request;
(gix) the rendering against the Servicer of one a final judgment, decree or more final judgments, decrees or orders order for the payment of money in excess of United States U.S. $50,000,000 5,000,000 (individually or in the aggregate, ) and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than 60 30 consecutive days without a stay of execution;
(hx) the Servicer shall fail failure of the Performance Guarantor to pay make any principal of payment due with respect to aggregate recourse debt or premium or interest on any indebtedness in other obligations with an aggregate outstanding principal amount exceeding U.S. $1,000,000 or the occurrence of $50,000,000 any event or more (“Material Debt”), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material Debt; or any other default under any agreement or instrument relating to any Material Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect condition that would permit acceleration of such default recourse debt or other obligations if such event is to accelerate, or to permit the acceleration of, the maturity of such Material Debt; or any such Material Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereofcondition has not been waived;
(ixi) any Guarantor Event of Default shall occur;
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or a Termination Event shall have occurred material adverse change occurs with regard to the collectibility of the Transferred Loans, taken as a whole;
(xiii) any Change-in-Control of the Servicer is made without the prior written consent of the Borrower and such Termination Event has not been waived by the Deal Administrative Agent;
(jxiv) the Originator or Servicer, if Credit Acceptance is Performance Guarantor shall fail to maintain a minimum Net Worth equal to the Servicer, fails to pay when due sum of (or no later than i) of $200,000,000 plus (ii) 50% of any equity and Subordinated Debt issued by the next Payment Date Performance Guarantor after the Servicer becomes aware that such payment was not madeEffective Date;
(xv) the Release Price in excess of $100,000Performance Guarantor shall fail to satisfy the RIC/BDC Requirements; or
(kxvi) either (1) on the Performance Guarantor shall pay any cash dividends; provided that the Performance Guarantor shall be permitted to pay cash dividends if the Servicer shall have caused the Performance Guarantor to have delivered a Consolidated (as defined certificate to the Administrative Agent, substantially in the Credit Agreementform of Exhibit G hereto, at least 10 Business Days prior to the making of any such cash dividend to the effect that (i) basis, the Servicer fails to maintain, as amount of the end declared dividend has been determined in good faith by the Board of each fiscal period as shown in Directors of the Performance Guarantor on the basis of the most recent current financial statement delivered information of the Performance Guarantor then available for the related period; (ii) the amount of the declared dividend does not exceed the net investment income and the net capital gain realized by the Servicer pursuant Performance Guarantor for the related period, based on the financial information referred to Section 5.1(k)(iiin clause (i) above; and Section 5.1(k)(iii), as applicable, a Fixed Charge Coverage Ratio (as defined in the Credit Agreement) of not less than 2.0 to 1.0, or (2) on a Consolidated (as defined in the Credit Agreement) basis, the Servicer fails to maintain, as of the end of each fiscal period as shown in the most recent financial statement delivered by the Servicer pursuant to Section 5.1(k)(ii) and Section 5.1(k)(iii), as applicable, a ratio of Consolidated Funded Debt (as defined in the Credit Agreement) as of such date minus Unrestricted Cash (as defined in the Credit Agreement) as of such date (including in the calculation thereof, for purposes hereof, all Funded Debt (as defined in the Credit Agreement) incurred by a Special Purpose Subsidiary (as defined in the Credit Agreement), whether or not included therein under GAAPiii) to the Servicer’s Consolidated Tangible Net Worth extent the declared dividend does not equal the net investment income and the net capital gain realized by the Performance Guarantor for the related period, the proposed dividend to be declared by the Performance Guarantor for the immediately ensuing period shall be either (as defined in x) reduced by the Credit Agreementamount such dividend for the immediately preceding period exceeded the net investment income and the net capital gain realized by the Performance Guarantor for the immediately preceding period or (y) as of increased by the amount such date equal to dividend or distribution for the immediately preceding period was less than 5.60 to 1.0the net investment income and the net capital gains realized by the Performance Guarantor for the immediately preceding period; then then, notwithstanding anything herein to the contrary, so long as any such Servicer Termination Event Events shall not have been remedied, within remedied at the expiration of any applicable cure period prior to the date of the Servicer Termination Notice (defined below)period, the Deal Administrative Agent may, or at the direction of the Required LendersCommitted Lenders shall, by written notice to the Servicer (with a copy to and the Backup Servicer and the Collateral Agent) (a “Servicer Termination Notice”), subject to the provisions of Section 7.19, either (i) shall, terminate all of the rights and obligations of the Servicer as Servicer under this AgreementAgreement or (ii) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and simultaneously reappoint the Servicer for a period not to exceed one month (subject to renewal at the sole discretion of the Administrative Agent, acting at the direction of the Required Committed Lenders), at the expiration of which appointment the Servicer’s rights and obligations hereunder shall automatically terminate without further action on the part of any party hereto. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
Appears in 1 contract
Servicer Termination Events. (a) If any one of the following events (a “Servicer Termination Event”) shall occur and be continuingcontinuing on any day:
(ai) any failure by the Servicer: Servicer to make any payment, transfer or deposit as required by this Agreement and such failure shall continue for two (x2) to deposit to the Collection Account Business Days;
(Aii) any amount required to be deposited therein by the Servicer (other than any such failure resulting from an administrative or technical error of the Servicer in the amount so deposited); or (B) within one (1) Business Day after the Servicer becomes aware that, as a result of an administrative or technical error of the Servicer, any amount previously deposited by the Servicer to give instructions or notice to the Collection Account was less than Borrower, any Managing Agent and/or the amount Administrative Agent as required by this Agreement or to deliver any Required Reports hereunder on or before the date occurring two (2) Business Days after the date such instructions, notice or report is required to be deposited therein by made or given, as the Servicercase may be, under the amount terms of such shortfall; or (y) to deliver to the Collateral Agent the Monthly Report on the related Determination Datethis Agreement;
(biii) any failure on the part of the Servicer duly to observe or to perform in any material respect any other covenants or agreements of the Servicer set forth in the Transaction Documents that results in a Material Adverse Effect this Agreement or any representation or warranty other Transaction Document to which it is a party as Servicer that continues unremedied for a period of fifteen (15) days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Managing Agent or the Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof;
(iv) any representation, warranty or certification made by the Servicer in any Transaction Document this Agreement or in any certificate or other writing delivered pursuant to any Transaction Document proving this Agreement shall prove to have been false or incorrect in any material respect as of the time when the same shall have been made, which made and such failure or defaultfailure, if capable of susceptible to a cure, shall continue unremedied for a period of forty-five fifteen (4515) days after the first to occur of (or a longer period, not in excess of ninety (90i) days as may be reasonably necessary to remedy such default, if the default is capable of remedy within ninety (90) days or less, and the Servicer delivers an Officer's Certificate to the Deal Agent, the Backup Servicer and the Collateral Agent to the effect that it has commenced, or will promptly commence and diligently pursue, all reasonable efforts to remedy the default) after (x) there shall have been given date on which written notice of such failure or default, requiring the same to be remedied, (1) to the Servicer, by the Collateral Agent or the Deal Agent, or (2) remedied shall have been given to the Servicer by the Collateral Agent at the direction of the Deal Administrative Agent, any Managing Agent or the Borrower and (yii) discovery of such failure the date on which the Servicer becomes or default by reasonably should have become aware thereof;
(v) the Servicer shall fail to service the Transferred Loans in accordance with the Credit and Collection Policy;
(vi) an officer of Insolvency Event shall occur with respect to the Servicer;
(cvii) the entry of a decree or order by a court or agency or supervisory authority having jurisdiction in Servicer agrees to materially alter the premises for Credit and Collection Policy without the appointment of a conservator, receiver, or liquidator for the Servicer or any of its subsidiaries in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings, or for the winding up or liquidation of its respective affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the entry of any decree or order for relief in respect prior written consent of the Servicer or any of its subsidiaries under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, or similar law, whether now or hereafter in effect, which decree or order for relief continues unstayed and in effect for a period of 60 consecutive daysRequired Lenders;
(d) the consent by the Servicer or any of its subsidiaries to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings of or relating to the Servicer or any of its subsidiaries or relating to substantially all of its property; or the admission by the Servicer or any of its subsidiaries in writing of its inability to pay its debts generally as they become due, the filing by the Servicer or any of its subsidiaries of a petition to take advantage of any applicable insolvency or reorganization statute, the making by the Servicer or any of its subsidiaries of an assignment for the benefit of its creditors, or the voluntary suspension by the Servicer or any of its subsidiaries of payment of its obligations;
(e) any delegation of the Servicer's duties that is not permitted by Section 7.1;
(fviii) any financial or asset information related to the Collateral reasonably requested by the Deal Agent, the Collateral Administrative Agent or any Lender Managing Agent as provided herein is not reasonably provided as requestedrequested within five (5) Business Days (or such longer period as the Administrative Agent or such Managing Agent may consent to) of the receipt by the Servicer of such request;
(gix) the rendering against the Servicer of one a final judgment, decree or more final judgments, decrees or orders order for the payment of money in excess of United States U.S. $50,000,000 5,000,000 (individually or in the aggregate, ) and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than 60 thirty (30) consecutive days without a stay of execution;
(hx) the failure of the Performance Guarantor to make any payment due with respect to aggregate recourse debt or other obligations with an aggregate principal amount exceeding U.S. $1,000,000 or the occurrence of any event or condition that would permit acceleration of such recourse debt or other obligations if such event or condition has not been waived;
(xi) any Guarantor Event of Default shall occur;
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or a material adverse change occurs with regard to the collectibility of the Transferred Loans, taken as a whole;
(xiii) any Change-in-Control of the Servicer is made without the prior written consent of the Borrower and the Administrative Agent, other than a Change-in-Control of the Servicer that is a result of transfer to a Permitted Holder;
(xiv) the Performance Guarantor shall fail to pay any principal maintain a minimum Net Worth equal to the sum of or premium or interest on any indebtedness in an aggregate outstanding principal amount (i) of $50,000,000 or more 325,000,000500,000,000 plus (“Material Debt”), when ii) 50% of any equity and Subordinated Debt issued by the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue Performance Guarantor after the applicable grace period, if any, specified in RestatementExtension Close Date minus (iii) 50% of any equity and Subordinated Debt retired or redeemed by 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 Performance Guarantor after the applicable grace periodRestatementExtension Close Date; provided that, if any, specified in such agreement or instrument if no event shall the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Material Debt; or any such Material Debt shall minimum Net Worth be declared to be due and payable or required to be prepaid (other less than by a regularly scheduled required prepayment) prior to the stated maturity thereof$325,000,000500,000,000 ;
(ixv) a Termination Event the Performance Guarantor shall have occurred and such Termination Event has not been waived by fail to satisfy the Deal AgentRIC/BDC Requirements;
(jxvi) the Originator or ServicerPerformance Guarantor shall fail to maintain “asset coverage” (as defined in and determined pursuant to Section 18 of the 1940 Act, if Credit Acceptance is as modified by Section 61 of the Servicer, fails to pay when due 1940 Act) of at least 150% (or no later than such percentage as may be set forth in Section 18 of the next Payment Date after 1940 Act, as modified by Section 61 of the Servicer becomes aware 1940 Act); provided, that such payment was not madefor purposes of testing compliance with this Section 7.18(a)(xvi) the Release Price in excess impact of $100,000the election of ASC 825 or similar accounting guideline with respect to determining the fair value of the debt of the Performance Guarantor on a consolidated basis shall be excluded (for avoidance of doubt, the intent of this language is to cause the debt of the Performance Guarantor to be valued at par value rather than fair value)); or
(kxvii) either the Performance Guarantor shall pay any cash dividends; provided that the Performance Guarantor shall be permitted to pay cash dividends if the Servicer shall have caused the Performance Guarantor to have delivered a certificate to the Administrative Agent, substantially in the form of Exhibit G hereto, at least ten (110) Business Days prior to the making of any such cash dividend to the effect that:
(A) the amount of the declared dividend has been determined in good faith by the Board of Directors of the Performance Guarantor on a Consolidated the basis of the most current financial projections of the Performance Guarantor then available for the Related Period (as defined in Exhibit G hereof);
(B) the Credit Agreement) basis, the Servicer fails to maintain, as amount of the end declared dividend does not exceed the sum of each fiscal period as shown in (i) the most recent financial statement delivered net investment income and the net capital gain projected to be realized by the Servicer pursuant Performance Guarantor for the Related Period based on the financial projections referred to in clause (A) above, and (ii) the amounts deemed by the Performance Guarantor to be considered as having been paid during the prior year in accordance with Section 5.1(k)(ii855(a) of the Code (together clauses (i) and Section 5.1(k)(iii(ii) comprising the “Projected Available Amount”), as applicable, a Fixed Charge Coverage Ratio ; and
(as defined in the Credit Agreement) of not less than 2.0 to 1.0, or (2) on a Consolidated (as defined in the Credit Agreement) basis, the Servicer fails to maintain, as of the end of each fiscal period as shown in the most recent financial statement delivered by the Servicer pursuant to Section 5.1(k)(ii) and Section 5.1(k)(iii), as applicable, a ratio of Consolidated Funded Debt (as defined in the Credit Agreement) as of such date minus Unrestricted Cash (as defined in the Credit Agreement) as of such date (including in the calculation thereof, for purposes hereof, all Funded Debt (as defined in the Credit Agreement) incurred by a Special Purpose Subsidiary (as defined in the Credit Agreement), whether or not included therein under GAAPC) to the Servicer’s Consolidated Tangible Net Worth extent the declared dividend referred to in clause (B) above exceeds the sum of (i) the net investment income and the net capital gain actually realized by the Performance Guarantor for the Related Period, plus (ii) the amounts deemed by Performance Guarantor to be considered as defined having been paid during the prior year in accordance with Section 855(a) of the Credit Agreement) as of such date equal to or less than 5.60 to 1.0Code (the “Excess Payment”); then the proposed dividend to be declared by the Performance Guarantor for the immediately ensuing Related Period shall be reduced by any positive amount resulting from the following calculation: (x) the ensuing Related Period’s proposed declared dividend plus the Excess Payment minus (y) the ensuing Related Period’s Projected Available Amount. then, notwithstanding anything herein to the contrary, so long as any such Servicer Termination Event Events shall not have been remedied, within remedied at the expiration of any applicable cure period prior to the date of the Servicer Termination Notice (defined below)period, the Deal Administrative Agent may, or at the direction of the Required LendersLenders shall, by written notice to the Servicer (with a copy to and the Backup Servicer and the Collateral Agent) (a “Servicer Termination Notice”), subject to the provisions of Section 7.19, either (i) shall, terminate all of the rights and obligations of the Servicer as Servicer under this AgreementAgreement or (ii) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and simultaneously reappoint the Servicer for a period not to exceed one month (subject to renewal at the sole discretion of the Administrative Agent, acting at the direction of the Required Lenders), at the expiration of which appointment the Servicer’s rights and obligations hereunder shall automatically terminate without further action on the part of any party hereto. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
Appears in 1 contract
Servicer Termination Events. (a) If any one of the following events (a “Servicer Termination Event”) shall occur and be continuingcontinuing on any day:
(ai) any failure by the Servicer: Servicer to make any payment, transfer or deposit as required by this Agreement and such failure shall continue for two (x2) to deposit to the Collection Account Business Days;
(Aii) any amount required to be deposited therein by the Servicer (other than any such failure resulting from an administrative or technical error of the Servicer in the amount so deposited); or (B) within one (1) Business Day after the Servicer becomes aware that, as a result of an administrative or technical error of the Servicer, any amount previously deposited by the Servicer to give instructions or notice to the Collection Account was less than Borrower, any Managing Agent and/or the amount Administrative 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 instructions, notice or report is required to be deposited therein by made or given, as the Servicercase may be, under the amount terms of such shortfall; or (y) to deliver to the Collateral Agent the Monthly Report on the related Determination Datethis Agreement;
(biii) any failure on the part of the Servicer duly to observe or to perform in any material respect any other covenants or agreements of the Servicer set forth in the Transaction Documents that results in a Material Adverse Effect this Agreement or any representation or warranty other Transaction Document to which it is a party as Servicer that continues unremedied for a period of fifteen (15) days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Managing Agent or the Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof;
(iv) any representation, warranty or certification made by the Servicer in any Transaction Document this Agreement or in any certificate or other writing delivered pursuant to any Transaction Document proving this Agreement shall prove to have been false or incorrect in any material respect as of the time when the same shall have been made, which made and such failure or defaultfailure, if capable of susceptible to a cure, shall continue unremedied for a period of forty-five fifteen (4515) days after the first to occur of (or a longer period, not in excess of ninety (90i) days as may be reasonably necessary to remedy such default, if the default is capable of remedy within ninety (90) days or less, and the Servicer delivers an Officer's Certificate to the Deal Agent, the Backup Servicer and the Collateral Agent to the effect that it has commenced, or will promptly commence and diligently pursue, all reasonable efforts to remedy the default) after (x) there shall have been given date on which written notice of such failure or default, requiring the same to be remedied, (1) to the Servicer, by the Collateral Agent or the Deal Agent, or (2) remedied shall have been given to the Servicer by the Collateral Agent at the direction of the Deal Administrative Agent, any Managing Agent or the Borrower and (yii) discovery of such failure the date on which the Servicer becomes or default by reasonably should have become aware thereof;
(v) the Servicer shall fail to service the Transferred Loans in accordance with the Credit and Collection Policy;
(vi) an officer of Insolvency Event shall occur with respect to the Servicer;
(cvii) the entry of a decree or order by a court or agency or supervisory authority having jurisdiction in Servicer agrees to materially alter the premises for Credit and Collection Policy without the appointment of a conservator, receiver, or liquidator for the Servicer or any of its subsidiaries in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings, or for the winding up or liquidation of its respective affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the entry of any decree or order for relief in respect prior written consent of the Servicer or any of its subsidiaries under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, or similar law, whether now or hereafter in effect, which decree or order for relief continues unstayed and in effect for a period of 60 consecutive daysAdministrative Agent;
(d) the consent by the Servicer or any of its subsidiaries to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings of or relating to the Servicer or any of its subsidiaries or relating to substantially all of its property; or the admission by the Servicer or any of its subsidiaries in writing of its inability to pay its debts generally as they become due, the filing by the Servicer or any of its subsidiaries of a petition to take advantage of any applicable insolvency or reorganization statute, the making by the Servicer or any of its subsidiaries of an assignment for the benefit of its creditors, or the voluntary suspension by the Servicer or any of its subsidiaries of payment of its obligations;
(e) any delegation of the Servicer's duties that is not permitted by Section 7.1;
(fviii) any financial or asset information related to the Collateral reasonably requested by the Deal Agent, the Collateral Administrative Agent or any Lender Managing Agent as provided herein is not reasonably provided as requestedrequested within five (5) Business Days (or such longer period as the Administrative Agent or such Managing Agent may consent to) of the receipt by the Servicer of such request;
(gix) the rendering against the Servicer of one a final judgment, decree or more final judgments, decrees or orders order for the payment of money in excess of United States U.S. $50,000,000 5,000,000 (individually or in the aggregate, ) and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than 60 30 consecutive days without a stay of execution;
(hx) the Servicer shall fail failure of the Performance Guarantor to pay make any principal of payment due with respect to aggregate recourse debt or premium or interest on any indebtedness in other obligations with an aggregate outstanding principal amount exceeding U.S. $1,000,000 or the occurrence of $50,000,000 any event or more (“Material Debt”), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material Debt; or any other default under any agreement or instrument relating to any Material Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect condition that would permit acceleration of such default recourse debt or other obligations if such event is to accelerate, or to permit the acceleration of, the maturity of such Material Debt; or any such Material Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereofcondition has not been waived;
(ixi) any Guarantor Event of Default shall occur;
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or a Termination Event shall have occurred material adverse change occurs with regard to the collectibility of the Transferred Loans, taken as a whole;
(xiii) any Change-in-Control of the Servicer is made without the prior written consent of the Borrower and such Termination Event has not been waived by the Deal Administrative Agent;
(jxiv) the Originator or Servicer, if Credit Acceptance is Performance Guarantor shall fail to maintain a minimum Tangible Net Worth equal to the Servicer, fails to pay when due sum of (or no later than i) of $250,000,000 plus (ii) 75% of any equity issued by the next Payment Date Servicer after the Servicer becomes aware that such payment was not made) the Release Price in excess of $100,000Effective Date; or
(kxv) either (1) on a Consolidated (as defined in the Credit Agreement) basisPerformance Guarantor shall fail to satisfy the RIC/BDC Requirements; then, the Servicer fails to maintain, as of the end of each fiscal period as shown in the most recent financial statement delivered by the Servicer pursuant to Section 5.1(k)(ii) and Section 5.1(k)(iii), as applicable, a Fixed Charge Coverage Ratio (as defined in the Credit Agreement) of not less than 2.0 to 1.0, or (2) on a Consolidated (as defined in the Credit Agreement) basis, the Servicer fails to maintain, as of the end of each fiscal period as shown in the most recent financial statement delivered by the Servicer pursuant to Section 5.1(k)(ii) and Section 5.1(k)(iii), as applicable, a ratio of Consolidated Funded Debt (as defined in the Credit Agreement) as of such date minus Unrestricted Cash (as defined in the Credit Agreement) as of such date (including in the calculation thereof, for purposes hereof, all Funded Debt (as defined in the Credit Agreement) incurred by a Special Purpose Subsidiary (as defined in the Credit Agreement), whether or not included therein under GAAP) to the Servicer’s Consolidated Tangible Net Worth (as defined in the Credit Agreement) as of such date equal to or less than 5.60 to 1.0; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Event Events shall not have been remedied, within remedied at the expiration of any applicable cure period prior to the date of the Servicer Termination Notice (defined below)period, the Deal Administrative Agent may, or at the direction of the Required LendersCommitted Lenders shall, by written notice to the Servicer (with a copy to and the Backup Servicer and the Collateral Agent) (a “Servicer Termination Notice”), subject to the provisions of Section 7.19, either (i) shall, terminate all of the rights and obligations of the Servicer as Servicer under this AgreementAgreement or (ii) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and simultaneously reappoint the Servicer for a period not to exceed one month (subject to renewal at the sole discretion of the Administrative Agent, acting at the direction of the Required Committed Lenders), at the expiration of which appointment the Servicer’s rights and obligations hereunder shall automatically terminate without further action on the part of any party hereto. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
Appears in 1 contract
Servicer Termination Events. (a) If any one of the following events (a “Servicer Termination Event”) shall occur and be continuingcontinuing on any day:
(ai) any failure by the Servicer: Servicer to make any payment, transfer or deposit as required by this Agreement and such failure shall continue for two (x2) to deposit to the Collection Account Business Days;
(Aii) any amount required to be deposited therein by the Servicer (other than any such failure resulting from an administrative or technical error of the Servicer in the amount so deposited); or (B) within one (1) Business Day after the Servicer becomes aware that, as a result of an administrative or technical error of the Servicer, any amount previously deposited by the Servicer to give instructions or notice to the Collection Account was less than Borrower, any Managing Agent and/or the amount Administrative Agent as required by this Agreement or to deliver any Required Reports hereunder on or before the date occurring two (2) Business Days after the date such instructions, notice or report is required to be deposited therein by made or given, as the Servicercase may be, under the amount terms of such shortfall; or (y) to deliver to the Collateral Agent the Monthly Report on the related Determination Datethis Agreement;
(biii) any failure on the part of the Servicer duly to observe or to perform in any material respect any other covenants or agreements of the Servicer set forth in the Transaction Documents that results in a Material Adverse Effect this Agreement or any representation or warranty other Transaction Document to which it is a party as Servicer that continues unremedied for a period of fifteen (15) days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Managing Agent or the Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof;
(iv) any representation, warranty or certification made by the Servicer in any Transaction Document this Agreement or in any certificate or other writing delivered pursuant to any Transaction Document proving this Agreement shall prove to have been false or incorrect in any material respect as of the time when the same shall have been made, which made and such failure or defaultfailure, if capable of susceptible to a cure, shall continue unremedied for a period of forty-five fifteen (4515) days after the first to occur of (or a longer period, not in excess of ninety (90i) days as may be reasonably necessary to remedy such default, if the default is capable of remedy within ninety (90) days or less, and the Servicer delivers an Officer's Certificate to the Deal Agent, the Backup Servicer and the Collateral Agent to the effect that it has commenced, or will promptly commence and diligently pursue, all reasonable efforts to remedy the default) after (x) there shall have been given date on which written notice of such failure or default, requiring the same to be remedied, (1) to the Servicer, by the Collateral Agent or the Deal Agent, or (2) remedied shall have been given to the Servicer by the Collateral Agent at the direction of the Deal Administrative Agent, any Managing Agent or the Borrower and (yii) discovery of such failure the date on which the Servicer becomes or default by reasonably should have become aware thereof;
(v) the Servicer shall fail to service the Transferred Loans in accordance with the Credit and Collection Policy;
(vi) an officer of Insolvency Event shall occur with respect to the Servicer;
(cvii) the entry of a decree or order by a court or agency or supervisory authority having jurisdiction in Servicer agrees to materially alter the premises for Credit and Collection Policy without the appointment of a conservator, receiver, or liquidator for the Servicer or any of its subsidiaries in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings, or for the winding up or liquidation of its respective affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the entry of any decree or order for relief in respect prior written consent of the Servicer or any of its subsidiaries under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, or similar law, whether now or hereafter in effect, which decree or order for relief continues unstayed and in effect for a period of 60 consecutive daysRequired Lenders;
(d) the consent by the Servicer or any of its subsidiaries to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings of or relating to the Servicer or any of its subsidiaries or relating to substantially all of its property; or the admission by the Servicer or any of its subsidiaries in writing of its inability to pay its debts generally as they become due, the filing by the Servicer or any of its subsidiaries of a petition to take advantage of any applicable insolvency or reorganization statute, the making by the Servicer or any of its subsidiaries of an assignment for the benefit of its creditors, or the voluntary suspension by the Servicer or any of its subsidiaries of payment of its obligations;
(e) any delegation of the Servicer's duties that is not permitted by Section 7.1;
(fviii) any financial or asset information related to the Collateral reasonably requested by the Deal Agent, the Collateral Administrative Agent or any Lender Managing Agent as provided herein is not reasonably provided as requestedrequested within five (5) Business Days (or such longer period as the Administrative Agent or such Managing Agent may consent to) of the receipt by the Servicer of such request;
(gix) the rendering against the Servicer of one a final judgment, decree or more final judgments, decrees or orders order for the payment of money in excess of United States U.S. $50,000,000 5,000,000 (individually or in the aggregate, ) and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than 60 thirty (30) consecutive days without a stay of execution;
(hx) the failure of the Performance Guarantor to make any payment due with respect to aggregate recourse debt or other obligations with an aggregate principal amount exceeding U.S. $1,000,000 or the occurrence of any event or condition that would permit acceleration of such recourse debt or other obligations if such event or condition has not been waived;
(xi) any Guarantor Event of Default shall occur;
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or a material adverse change occurs with regard to the collectibility of the Transferred Loans, taken as a whole;
(xiii) any Change-in-Control of the Servicer is made without the prior written consent of the Borrower and the Administrative Agent, other than a Change-in-Control of the Servicer that is a result of transfer to a Permitted Holder;
(xiv) the Performance Guarantor shall fail to pay any principal maintain a minimum Net Worth equal to the sum of or premium or interest on any indebtedness in an aggregate outstanding principal amount (i) of $50,000,000 or more 325,000,000 plus (“Material Debt”), when ii) 50% of any equity and Subordinated Debt issued by the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue Performance Guarantor after the applicable grace period, if any, specified in Restatement Date minus (iii) 50% of any equity and Subordinated Debt retired or redeemed by 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 Performance Guarantor after the applicable grace periodRestatement Date; provided that, if any, specified in such agreement or instrument if no event shall the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Material Debt; or any such Material Debt shall minimum Net Worth be declared to be due and payable or required to be prepaid (other less than by a regularly scheduled required prepayment) prior to the stated maturity thereof$325,000,000;
(ixv) a Termination Event the Performance Guarantor shall have occurred and such Termination Event has not been waived by fail to satisfy the Deal AgentRIC/BDC Requirements;
(jxvi) the Originator or ServicerPerformance Guarantor shall fail to maintain “asset coverage” (as defined in and determined pursuant to Section 18 of the 1940 Act, if Credit Acceptance is as modified by Section 61 of the Servicer, fails to pay when due 1940 Act) of at least 150% (or no later than such percentage as may be set forth in Section 18 of the next Payment Date after 1940 Act, as modified by Section 61 of the Servicer becomes aware 1940 Act); provided, that such payment was not madefor purposes of testing compliance with this Section 7.18(a)(xvi) the Release Price in excess impact of $100,000the election of ASC 825 or similar accounting guideline with respect to determining the fair value of the debt of the Performance Guarantor on a consolidated basis shall be excluded (for avoidance of doubt, the intent of this language is to cause the debt of the Performance Guarantor to be valued at par value rather than fair value)); or
(kxvii) either the Performance Guarantor shall pay any cash dividends; provided that the Performance Guarantor shall be permitted to pay cash dividends if the Servicer shall have caused the Performance Guarantor to have delivered a certificate to the Administrative Agent, substantially in the form of Exhibit G hereto, at least ten (110) Business Days prior to the making of any such cash dividend to the effect that:
(A) the amount of the declared dividend has been determined in good faith by the Board of Directors of the Performance Guarantor on a Consolidated the basis of the most current financial projections of the Performance Guarantor then available for the Related Period (as defined in Exhibit G hereof);
(B) the Credit Agreement) basis, the Servicer fails to maintain, as amount of the end declared dividend does not exceed the sum of each fiscal period as shown in (i) the most recent financial statement delivered net investment income and the net capital gain projected to be realized by the Servicer pursuant Performance Guarantor for the Related Period based on the financial projections referred to in clause (A) above, and (ii) the amounts deemed by the Performance Guarantor to be considered as having been paid during the prior year in accordance with Section 5.1(k)(ii855(a) of the Code (together clauses (i) and Section 5.1(k)(iii(ii) comprising the “Projected Available Amount”), as applicable, a Fixed Charge Coverage Ratio ; and
(as defined in the Credit Agreement) of not less than 2.0 to 1.0, or (2) on a Consolidated (as defined in the Credit Agreement) basis, the Servicer fails to maintain, as of the end of each fiscal period as shown in the most recent financial statement delivered by the Servicer pursuant to Section 5.1(k)(ii) and Section 5.1(k)(iii), as applicable, a ratio of Consolidated Funded Debt (as defined in the Credit Agreement) as of such date minus Unrestricted Cash (as defined in the Credit Agreement) as of such date (including in the calculation thereof, for purposes hereof, all Funded Debt (as defined in the Credit Agreement) incurred by a Special Purpose Subsidiary (as defined in the Credit Agreement), whether or not included therein under GAAPC) to the Servicer’s Consolidated Tangible Net Worth extent the declared dividend referred to in clause (B) above exceeds the sum of (i) the net investment income and the net capital gain actually realized by the Performance Guarantor for the Related Period, plus (ii) the amounts deemed by Performance Guarantor to be considered as defined having been paid during the prior year in accordance with Section 855(a) of the Credit Agreement) as of such date equal to or less than 5.60 to 1.0Code (the “Excess Payment”); then the proposed dividend to be declared by the Performance Guarantor for the immediately ensuing Related Period shall be reduced by any positive amount resulting from the following calculation: (x) the ensuing Related Period’s proposed declared dividend plus the Excess Payment minus (y) the ensuing Related Period’s Projected Available Amount. then, notwithstanding anything herein to the contrary, so long as any such Servicer Termination Event Events shall not have been remedied, within remedied at the expiration of any applicable cure period prior to the date of the Servicer Termination Notice (defined below)period, the Deal Administrative Agent may, or at the direction of the Required LendersLenders shall, by written notice to the Servicer (with a copy to and the Backup Servicer and the Collateral Agent) (a “Servicer Termination Notice”), subject to the provisions of Section 7.19, either (i) shall, terminate all of the rights and obligations of the Servicer as Servicer under this AgreementAgreement or (ii) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and simultaneously reappoint the Servicer for a period not to exceed one month (subject to renewal at the sole discretion of the Administrative Agent, acting at the direction of the Required Lenders), at the expiration of which appointment the Servicer’s rights and obligations hereunder shall automatically terminate without further action on the part of any party hereto. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
Appears in 1 contract
Servicer Termination Events. If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing:
continuing on any day: (ai) any failure by the Servicer: Servicer to make any payment, transfer or deposit as required by this Agreement and such failure shall continue for two (x2) to deposit to the Collection Account Business Days; (Aii) any amount required to be deposited therein by the Servicer (other than any such failure resulting from an administrative or technical error of the Servicer in the amount so deposited); or (B) within one (1) Business Day after the Servicer becomes aware that, as a result of an administrative or technical error of the Servicer, any amount previously deposited by the Servicer to give instructions or notice to the Collection Account was less than Borrower, any Managing Agent and/or the amount Administrative 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 instructions, notice or report is required to be deposited therein by made or given, as the Servicercase may be, under the amount terms of such shortfallthis Agreement; or (y) to deliver to the Collateral Agent the Monthly Report on the related Determination Date;
(biii) any failure on the part of the Servicer duly to observe or to perform in any material respect any other covenants or agreements of the Servicer set forth in the Transaction Documents that results in a Material Adverse Effect this Agreement or any representation or warranty other Transaction Document to which it is a party as Servicer that 99 continues unremedied for a period of fifteen (15) days after the first to occur of (A) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Managing Agent or the Borrower and (B) the date on which the Servicer becomes or reasonably should have become aware thereof; (iv) any representation, warranty or certification made by the Servicer in any Transaction Document this Agreement or in any certificate or other writing delivered pursuant to any Transaction Document proving this Agreement shall prove to have been false or incorrect in any material respect as of the time when the same shall have been made, which made and such failure or defaultfailure, if capable of susceptible to a cure, shall continue unremedied for a period of forty-five fifteen (4515) days after the first to occur of (or a longer period, not in excess of ninety (90i) days as may be reasonably necessary to remedy such default, if the default is capable of remedy within ninety (90) days or less, and the Servicer delivers an Officer's Certificate to the Deal Agent, the Backup Servicer and the Collateral Agent to the effect that it has commenced, or will promptly commence and diligently pursue, all reasonable efforts to remedy the default) after (x) there shall have been given date on which written notice of such failure or default, requiring the same to be remedied, (1) to the Servicer, by the Collateral Agent or the Deal Agent, or (2) remedied shall have been given to the Servicer by the Collateral Administrative Agent, any Managing Agent at or the direction Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof; (v) the Servicer shall fail to service the Transferred Loans in accordance with the Credit and Collection Policy; (vi) an Insolvency Event shall occur with respect to the Servicer; (vii) the Servicer agrees to materially alter the Credit and Collection Policy without the prior written consent of the Deal Agent or Required Lenders; (y) discovery of such failure or default by an officer of the Servicer;
(c) the entry of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, receiver, or liquidator for the Servicer or any of its subsidiaries in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings, or for the winding up or liquidation of its respective affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the entry of any decree or order for relief in respect of the Servicer or any of its subsidiaries under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, or similar law, whether now or hereafter in effect, which decree or order for relief continues unstayed and in effect for a period of 60 consecutive days;
(d) the consent by the Servicer or any of its subsidiaries to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings of or relating to the Servicer or any of its subsidiaries or relating to substantially all of its property; or the admission by the Servicer or any of its subsidiaries in writing of its inability to pay its debts generally as they become due, the filing by the Servicer or any of its subsidiaries of a petition to take advantage of any applicable insolvency or reorganization statute, the making by the Servicer or any of its subsidiaries of an assignment for the benefit of its creditors, or the voluntary suspension by the Servicer or any of its subsidiaries of payment of its obligations;
(e) any delegation of the Servicer's duties that is not permitted by Section 7.1;
(fviii) any financial or asset information related to the Collateral reasonably requested by the Deal Agent, the Collateral Administrative Agent or any Lender Managing Agent as provided herein is not reasonably provided as requested;
requested within five (g5) Business Days (or such longer period as the Administrative Agent or such Managing Agent may consent to) of the receipt by the Servicer of such request; (ix) the rendering against the Servicer of one a final judgment, decree or more final judgments, decrees or orders order for the payment of money in excess of United States U.S. $50,000,000 5,000,000 (individually or in the aggregate, ) and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than 60 30 consecutive days without a stay of execution;
; (hx) the Servicer shall fail failure of the Performance Guarantor to pay make any principal of payment due with respect to aggregate recourse debt or premium or interest on any indebtedness in other obligations with an aggregate outstanding principal amount exceeding U.S. $1,000,000 or the occurrence of $50,000,000 any event or more (“Material Debt”), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material Debt; or any other default under any agreement or instrument relating to any Material Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect condition that would permit acceleration of such default recourse debt or other obligations if such event is to accelerate, or to permit the acceleration of, the maturity of such Material Debt; or any such Material Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof;
(i) a Termination Event shall have occurred and such Termination Event condition has not been waived by the Deal Agent;
waived; (jxi) the Originator or Servicer, if Credit Acceptance is the Servicer, fails to pay when due any Guarantor Event of Default shall occur; (or no later than the next Payment Date after the Servicer becomes aware that such payment was not madexii) the Release Price in excess of $100,000; or
(k) either (1) on a Consolidated (as defined any Material Adverse Change occurs 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 not less than 2.0 to 1.0, or (2) on a Consolidated (as defined in the Credit Agreement) basis, the Servicer fails to maintain, as of the end of each fiscal period as shown in the most recent financial statement delivered by the Servicer pursuant to Section 5.1(k)(ii) and Section 5.1(k)(iii), as applicable, a ratio of Consolidated Funded Debt (as defined in the Credit Agreement) as of such date minus Unrestricted Cash (as defined in the Credit Agreement) as of such date (including in the calculation thereof, for purposes hereof, all Funded Debt (as defined in the Credit Agreement) incurred by a Special Purpose Subsidiary (as defined in the Credit Agreement), whether or not included therein under GAAP) to the Servicer’s Consolidated Tangible Net Worth (as defined in the Credit Agreement) as of such date equal to or less than 5.60 to 1.0; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Event shall not have been remedied, within any applicable cure period prior to the date condition of the Servicer Termination Notice (defined below), or a material adverse change occurs with regard to the Deal Agent may, or at the direction collectibility of the Required LendersTransferred Loans, by written notice to the Servicer (with taken as a copy to the Backup Servicer and the Collateral Agent) (a “Servicer Termination Notice”) shall, terminate all of the rights and obligations of the Servicer as Servicer under this Agreement.whole; 100
Appears in 1 contract
Sources: Credit Agreement (Gladstone Investment Corporation\de)
Servicer Termination Events. If any one For purposes of this Agreement, each of the following events (shall constitute a “"Servicer Termination Event”) shall occur and be continuing":
(a) any failure by the Servicer: (x) Servicer to deposit to into any of the Local Collection Account, any lock-box account specifically used (with the consent of the Purchaser) for receipt of payments in respect of the Receivables, or the Collection Account (A) any amount proceeds, or payment required to be deposited therein by so delivered under the Servicer terms of this Agreement that continues unremedied for a period of two Business Days (other than any such failure resulting from an administrative or technical error of the Servicer in the amount so deposited); or (B) within one (1) Business Day with respect to payments of Purchase Amounts) after the Servicer becomes aware that, as a result of an administrative or technical error of the Servicer, any amount previously deposited by the Servicer to the Collection Account was less than the amount such payment is required to be deposited therein by the Servicer, the amount of such shortfall; or (y) to deliver to the Collateral Agent the Monthly Report on the related Determination Datedeposited;
(b) failure by the Servicer to deliver to the Purchaser and the Paying Agent the Servicer's Certificate by the applicable Determination Date, or to observe any covenant or agreement set forth in Section 3.06;
(c) failure on the part of the Servicer duly to observe or to perform any other covenants or agreements of the Servicer set forth in this Agreement, which failure (i) materially and adversely affects the Transaction Documents that results in rights of the Purchaser and (ii) continues unremedied for a Material Adverse Effect period of 30 days after knowledge thereof by the Servicer or after the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Purchaser;
(d) any representation representation, warranty or warranty statement of the Servicer made in this Agreement or any Transaction Document or in any certificate certificate, report or other writing delivered pursuant hereto shall prove to any Transaction Document proving to have been be incorrect in any material respect as of the time when the same shall have been made, which such failure or default, if capable of cure, shall continue unremedied for a period of 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 incorrectness of such representation, warranty or statement has a material adverse effect on the Deal AgentPurchaser and, the Backup Servicer and the Collateral Agent to the effect that it has commenced, or will promptly commence and diligently pursue, all reasonable efforts to remedy the default) within 30 days after (x) there written notice thereof shall have been given written notice of such failure or default, requiring the same to be remedied, (1) to the Servicer, by the Collateral Agent or the Deal Agent, or (2) to the Servicer by the Collateral Agent at Purchaser, the direction of the Deal Agent circumstances or (y) discovery of such failure or default by an officer of the Servicer;
(c) the entry of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, receiver, or liquidator for the Servicer or any of its subsidiaries in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings, or for the winding up or liquidation of its respective affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the entry of any decree or order for relief condition in respect of the Servicer which such representation, warranty or any of its subsidiaries under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, statement was incorrect shall not have been eliminated or similar law, whether now or hereafter in effect, which decree or order for relief continues unstayed and in effect for a period of 60 consecutive days;
(d) the consent by the Servicer or any of its subsidiaries to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings of or relating to the Servicer or any of its subsidiaries or relating to substantially all of its property; or the admission by the Servicer or any of its subsidiaries in writing of its inability to pay its debts generally as they become due, the filing by the Servicer or any of its subsidiaries of a petition to take advantage of any applicable insolvency or reorganization statute, the making by the Servicer or any of its subsidiaries of an assignment for the benefit of its creditors, or the voluntary suspension by the Servicer or any of its subsidiaries of payment of its obligationsotherwise cured;
(e) any delegation the occurrence of an Insolvency Event with respect to the Servicer or, so long as First Merchants is the Servicer's duties that is not permitted by Section 7.1, the Seller;
(f) any financial information related failure by the Purchaser to have delivered a Servicer Extension Notice pursuant to Section 3.14 at least 5 Business Days prior to the Collateral reasonably requested by the Deal Agent, the Collateral Agent or expiration of any Lender as provided herein is not reasonably provided as requested;servicing term; or
(g) the rendering against the Servicer of is terminated as servicer with respect to any trust that has issued one or more final judgments, decrees or orders for the payment classes of money in excess of United States $50,000,000 in the aggregate, and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than 60 consecutive days without a stay of execution;
(h) the Servicer shall fail to pay any principal of or premium or interest on any indebtedness in an aggregate outstanding principal amount of $50,000,000 or more (“Material Debt”), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material Debt; or any other default under any agreement or instrument relating to any Material Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Material Debt; or any such Material Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof;
(i) a Termination Event shall have occurred and such Termination Event has not been waived by the Deal Agent;
(j) the Originator or Servicer, if Credit Acceptance is the Servicer, fails to pay when due (or no later than the next Payment Date after the Servicer becomes aware that such payment was not made) the Release Price in excess of $100,000; or
(k) 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 not less than 2.0 to 1.0, or (2) on a Consolidated (as defined in the Credit Agreement) basis, the Servicer fails to maintain, as of the end of each fiscal period as shown in the most recent financial statement delivered by the Servicer pursuant to Section 5.1(k)(ii) and Section 5.1(k)(iii), as applicable, a ratio of Consolidated Funded Debt (as defined in the Credit Agreement) as of such date minus Unrestricted Cash (as defined in the Credit Agreement) as of such date (including in the calculation thereof, for purposes hereof, all Funded Debt (as defined in the Credit Agreement) incurred by a Special Purpose Subsidiary (as defined in the Credit Agreement), whether or not included therein under GAAP) to the Servicer’s Consolidated Tangible Net Worth (as defined in the Credit Agreement) as of such date equal to or less than 5.60 to 1.0; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Event shall not have been remedied, within any applicable cure period prior to the date of the Servicer Termination Notice (defined below), the Deal Agent may, or at the direction of the Required Lenders, by written notice to the Servicer (with a copy to the Backup Servicer and the Collateral Agent) (a “Servicer Termination Notice”) shall, terminate all of the rights and obligations of the Servicer as Servicer under this Agreementasset backed securities.
Appears in 1 contract
Sources: Servicing Agreement (First Merchants Acceptance Corp)
Servicer Termination Events. If any one of the following events (a “Servicer Termination Event”) shall occur and be continuing:
continuing on any day: (ai) any failure by the Servicer: Servicer to make any payment, transfer or deposit as required by this Agreement and such failure shall continue for two (x2) to deposit to the Collection Account Business Days; (Aii) any amount required to be deposited therein by the Servicer (other than any such failure resulting from an administrative or technical error of the Servicer in the amount so deposited); or (B) within one (1) Business Day after the Servicer becomes aware that, as a result of an administrative or technical error of the Servicer, any amount previously deposited by the Servicer to give instructions or notice to the Collection Account was less than Borrower, any Managing Agent and/or the amount Administrative 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 instructions, notice or report is required to be deposited therein by made or given, as the Servicercase may be, under the amount terms of such shortfallthis Agreement; or (y) to deliver to the Collateral Agent the Monthly Report on the related Determination Date;
(biii) any failure on the part of the Servicer duly to observe or to perform in any material respect any other covenants or agreements of the Servicer set forth in the Transaction Documents that results in a Material Adverse Effect this Agreement or any representation or warranty other Transaction Document to which it is a party as Servicer that 95 continues unremedied for a period of fifteen (15) days after the first to occur of (A) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Managing Agent or the Borrower and (B) the date on which the Servicer becomes or reasonably should have become aware thereof; (iv) any representation, warranty or certification made by the Servicer in any Transaction Document this Agreement or in any certificate or other writing delivered pursuant to any Transaction Document proving this Agreement shall prove to have been false or incorrect in any material respect as of the time when the same shall have been made, which made and such failure or defaultfailure, if capable of susceptible to a cure, shall continue unremedied for a period of forty-five fifteen (4515) days after the first to occur of (or a longer period, not in excess of ninety (90i) days as may be reasonably necessary to remedy such default, if the default is capable of remedy within ninety (90) days or less, and the Servicer delivers an Officer's Certificate to the Deal Agent, the Backup Servicer and the Collateral Agent to the effect that it has commenced, or will promptly commence and diligently pursue, all reasonable efforts to remedy the default) after (x) there shall have been given date on which written notice of such failure or default, requiring the same to be remedied, (1) to the Servicer, by the Collateral Agent or the Deal Agent, or (2) remedied shall have been given to the Servicer by the Collateral Administrative Agent, any Managing Agent at or the direction Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof; (v) the Servicer shall fail to service the Transferred Loans in accordance with the Credit and Collection Policy; (vi) an Insolvency Event shall occur with respect to the Servicer; (vii) the Servicer agrees to materially alter the Credit and Collection Policy without the prior written consent of the Deal Agent or Required Lenders; (y) discovery of such failure or default by an officer of the Servicer;
(c) the entry of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, receiver, or liquidator for the Servicer or any of its subsidiaries in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings, or for the winding up or liquidation of its respective affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the entry of any decree or order for relief in respect of the Servicer or any of its subsidiaries under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, or similar law, whether now or hereafter in effect, which decree or order for relief continues unstayed and in effect for a period of 60 consecutive days;
(d) the consent by the Servicer or any of its subsidiaries to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings of or relating to the Servicer or any of its subsidiaries or relating to substantially all of its property; or the admission by the Servicer or any of its subsidiaries in writing of its inability to pay its debts generally as they become due, the filing by the Servicer or any of its subsidiaries of a petition to take advantage of any applicable insolvency or reorganization statute, the making by the Servicer or any of its subsidiaries of an assignment for the benefit of its creditors, or the voluntary suspension by the Servicer or any of its subsidiaries of payment of its obligations;
(e) any delegation of the Servicer's duties that is not permitted by Section 7.1;
(fviii) any financial or asset information related to the Collateral reasonably requested by the Deal Agent, the Collateral Administrative Agent or any Lender Managing Agent as provided herein is not reasonably provided as requested;
requested within five (g5) Business Days (or such longer period as the Administrative Agent or such Managing Agent may consent to) of the receipt by the Servicer of such request; (ix) the rendering against the Servicer of one a final judgment, decree or more final judgments, decrees or orders order for the payment of money in excess of United States U.S. $50,000,000 5,000,000 (individually or in the aggregate, ) and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than 60 30 consecutive days without a stay of execution;
; (hx) the Servicer shall fail failure of the Performance Guarantor to pay make any principal of payment due with respect to aggregate recourse debt or premium or interest on any indebtedness in other obligations with an aggregate outstanding principal amount exceeding U.S. $1,000,000 or the occurrence of $50,000,000 any event or more (“Material Debt”), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material Debt; or any other default under any agreement or instrument relating to any Material Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect condition that would permit acceleration of such default recourse debt or other obligations if such event is to accelerate, or to permit the acceleration of, the maturity of such Material Debt; or any such Material Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof;
(i) a Termination Event shall have occurred and such Termination Event condition has not been waived by the Deal Agent;
waived; (jxi) the Originator or Servicer, if Credit Acceptance is the Servicer, fails to pay when due any Guarantor Event of Default shall occur; (or no later than the next Payment Date after the Servicer becomes aware that such payment was not madexii) the Release Price in excess of $100,000; or
(k) either (1) on a Consolidated (as defined any Material Adverse Change occurs 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 not less than 2.0 to 1.0, or (2) on a Consolidated (as defined in the Credit Agreement) basis, the Servicer fails to maintain, as of the end of each fiscal period as shown in the most recent financial statement delivered by the Servicer pursuant to Section 5.1(k)(ii) and Section 5.1(k)(iii), as applicable, a ratio of Consolidated Funded Debt (as defined in the Credit Agreement) as of such date minus Unrestricted Cash (as defined in the Credit Agreement) as of such date (including in the calculation thereof, for purposes hereof, all Funded Debt (as defined in the Credit Agreement) incurred by a Special Purpose Subsidiary (as defined in the Credit Agreement), whether or not included therein under GAAP) to the Servicer’s Consolidated Tangible Net Worth (as defined in the Credit Agreement) as of such date equal to or less than 5.60 to 1.0; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Event shall not have been remedied, within any applicable cure period prior to the date condition of the Servicer Termination Notice (defined below), or a material adverse change occurs with regard to the Deal Agent may, or at the direction collectibility of the Required LendersTransferred Loans, by written notice to the Servicer (with taken as a copy to the Backup Servicer and the Collateral Agent) (a “Servicer Termination Notice”) shall, terminate all of the rights and obligations of the Servicer as Servicer under this Agreement.whole; 96
Appears in 1 contract
Sources: Credit Agreement (Gladstone Investment Corporation\de)
Servicer Termination Events. (a) If any one of the following events (a “Servicer Termination Event”) shall occur and be continuingcontinuing on any day:
(ai) any failure by the Servicer: Servicer to make any payment, transfer or deposit as required by this Agreement and such failure shall continue for two (x2) to deposit to the Collection Account Business Days;
(Aii) any amount required to be deposited therein by the Servicer (other than any such failure resulting from an administrative or technical error of the Servicer in the amount so deposited); or (B) within one (1) Business Day after the Servicer becomes aware that, as a result of an administrative or technical error of the Servicer, any amount previously deposited by the Servicer to give instructions or notice to the Collection Account was less than Borrower, any Managing Agent and/or the amount Administrative 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 instructions, notice or report is required to be deposited therein by made or given, as the Servicercase may be, under the amount terms of such shortfall; or (y) to deliver to the Collateral Agent the Monthly Report on the related Determination Datethis Agreement;
(biii) any failure on the part of the Servicer duly to observe or to perform in any material respect any other covenants or agreements of the Servicer set forth in the Transaction Documents that results in a Material Adverse Effect this Agreement or any representation or warranty other Transaction Document to which it is a party as Servicer that continues unremedied for a period of fifteen (15) days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Managing Agent or the Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof;
(iv) any representation, warranty or certification made by the Servicer in any Transaction Document this Agreement or in any certificate or other writing delivered pursuant to any Transaction Document proving this Agreement shall prove to have been false or incorrect in any material respect as of the time when the same shall have been made, which made and such failure or defaultfailure, if capable of susceptible to a cure, shall continue unremedied for a period of forty-five fifteen (4515) days after the first to occur of (or a longer period, not in excess of ninety (90i) days as may be reasonably necessary to remedy such default, if the default is capable of remedy within ninety (90) days or less, and the Servicer delivers an Officer's Certificate to the Deal Agent, the Backup Servicer and the Collateral Agent to the effect that it has commenced, or will promptly commence and diligently pursue, all reasonable efforts to remedy the default) after (x) there shall have been given date on which written notice of such failure or default, requiring the same to be remedied, (1) to the Servicer, by the Collateral Agent or the Deal Agent, or (2) remedied shall have been given to the Servicer by the Collateral Agent at the direction of the Deal Administrative Agent, any Managing Agent or the Borrower and (yii) discovery of such failure the date on which the Servicer becomes or default by reasonably should have become aware thereof;
(v) the Servicer shall fail to service the Transferred Loans in accordance with the Credit and Collection Policy;
(vi) an officer of Insolvency Event shall occur with respect to the Servicer;
(cvii) the entry of a decree or order by a court or agency or supervisory authority having jurisdiction in Servicer agrees to materially alter the premises for Credit and Collection Policy without the appointment of a conservator, receiver, or liquidator for the Servicer or any of its subsidiaries in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings, or for the winding up or liquidation of its respective affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the entry of any decree or order for relief in respect prior written consent of the Servicer or any of its subsidiaries under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, or similar law, whether now or hereafter in effect, which decree or order for relief continues unstayed and in effect for a period of 60 consecutive daysRequired Lenders;
(d) the consent by the Servicer or any of its subsidiaries to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings of or relating to the Servicer or any of its subsidiaries or relating to substantially all of its property; or the admission by the Servicer or any of its subsidiaries in writing of its inability to pay its debts generally as they become due, the filing by the Servicer or any of its subsidiaries of a petition to take advantage of any applicable insolvency or reorganization statute, the making by the Servicer or any of its subsidiaries of an assignment for the benefit of its creditors, or the voluntary suspension by the Servicer or any of its subsidiaries of payment of its obligations;
(e) any delegation of the Servicer's duties that is not permitted by Section 7.1;
(fviii) any financial or asset information related to the Collateral reasonably requested by the Deal Agent, the Collateral Administrative Agent or any Lender Managing Agent as provided herein is not reasonably provided as requestedrequested within five (5) Business Days (or such longer period as the Administrative Agent or such Managing Agent may consent to) of the receipt by the Servicer of such request;
(gix) the rendering against the Servicer of one a final judgment, decree or more final judgments, decrees or orders order for the payment of money in excess of United States U.S. $50,000,000 5,000,000 (individually or in the aggregate, ) and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than 60 30 consecutive days without a stay of execution;
(hx) the Servicer shall fail failure of the Performance Guarantor to pay make any principal of payment due with respect to aggregate recourse debt or premium or interest on any indebtedness in other obligations with an aggregate outstanding principal amount exceeding U.S. $1,000,000 or the occurrence of $50,000,000 any event or more (“Material Debt”), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material Debt; or any other default under any agreement or instrument relating to any Material Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect condition that would permit acceleration of such default recourse debt or other obligations if such event is to accelerate, or to permit the acceleration of, the maturity of such Material Debt; or any such Material Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereofcondition has not been waived;
(ixi) any Guarantor Event of Default shall occur;
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or a Termination Event shall have occurred material adverse change occurs with regard to the collectibility of the Transferred Loans, taken as a whole;
(xiii) any Change-in-Control of the Servicer is made without the prior written consent of the Borrower and such Termination Event has not been waived by the Deal Administrative Agent;
(jxiv) the Originator Performance Guarantor shall fail to maintain a minimum Net Worth equal to the sum of (i) of $205,000,000 plus (ii) 50% of any equity and Subordinated Debt issued by the Performance Guarantor after the Effective Date minus (iii) 50% of any equity and Subordinated Debt retired or Servicerredeemed by the Performance Guarantor after the Effective Date; provided that, if Credit Acceptance is in no event shall the Servicer, fails minimum Net Worth be less than $205,000,000;
(xv) the Performance Guarantor shall fail to pay when due satisfy the RIC/BDC Requirements;
(xvi) the Performance Guarantor shall fail to maintain “asset coverage” (as defined in and determined pursuant to Section 18 of the 1▇▇▇ ▇▇▇) of at least 200% (or no later than such higher percentage as may be set forth in Section 18 of the next Payment Date after the Servicer becomes aware 1940 Act); provided, that such payment was not madefor purposes of testing compliance with this Section 7.18(a)(xvi) the Release Price in excess impact of $100,000the election of ASC 825 or similar accounting guideline with respect to determining the fair value of the debt of the Performance Guarantor on a consolidated basis shall be excluded (for avoidance of doubt, the intent of this language is to cause the debt of the Performance Guarantor to be valued at par value rather than fair value)); or
(kxvii) either the Performance Guarantor shall pay any cash dividends; provided that the Performance Guarantor shall be permitted to pay cash dividends if the Servicer shall have caused the Performance Guarantor to have delivered a certificate to the Administrative Agent, substantially in the form of Exhibit G hereto, at least 10 Business Days prior to the making of any such cash dividend to the effect that:
(1A) the amount of the declared dividend has been determined in good faith by the Board of Directors of the Performance Guarantor on a Consolidated the basis of the most current financial projections of the Performance Guarantor then available for the Related Period (as defined in Exhibit G hereof);
(B) the Credit Agreement) basis, the Servicer fails to maintain, as amount of the end declared dividend does not exceed the sum of each fiscal period as shown in (i) the most recent financial statement delivered net investment income and the net capital gain projected to be realized by the Servicer pursuant Performance Guarantor for the Related Period based on the financial projections referred to in clause (A) above, and (ii) the amounts deemed by the Performance Guarantor to be considered as having been paid during the prior year in accordance with Section 5.1(k)(ii855(a) of the Code (together clauses (i) and Section 5.1(k)(iii(ii) comprising the “Projected Available Amount”), as applicable, a Fixed Charge Coverage Ratio ; and
(as defined in the Credit Agreement) of not less than 2.0 to 1.0, or (2) on a Consolidated (as defined in the Credit Agreement) basis, the Servicer fails to maintain, as of the end of each fiscal period as shown in the most recent financial statement delivered by the Servicer pursuant to Section 5.1(k)(ii) and Section 5.1(k)(iii), as applicable, a ratio of Consolidated Funded Debt (as defined in the Credit Agreement) as of such date minus Unrestricted Cash (as defined in the Credit Agreement) as of such date (including in the calculation thereof, for purposes hereof, all Funded Debt (as defined in the Credit Agreement) incurred by a Special Purpose Subsidiary (as defined in the Credit Agreement), whether or not included therein under GAAPC) to the Servicer’s Consolidated Tangible Net Worth extent the declared dividend referred to in clause (B) above exceeds the sum of (i) the net investment income and the net capital gain actually realized by the Performance Guarantor for the Related Period, plus (ii) the amounts deemed by Performance Guarantor to be considered as defined having been paid during the prior year in accordance with Section 855(a) of the Credit Agreement) as of such date equal to or less than 5.60 to 1.0Code (the “Excess Payment”); then the proposed dividend to be declared by the Performance Guarantor for the immediately ensuing Related Period shall be reduced by any positive amount resulting from the following calculation: (x) the ensuing Related Period’s proposed declared dividend plus the Excess Payment minus (y) the ensuing Related Period’s Projected Available Amount. then, notwithstanding anything herein to the contrary, so long as any such Servicer Termination Event Events shall not have been remedied, within remedied at the expiration of any applicable cure period prior to the date of the Servicer Termination Notice (defined below)period, the Deal Administrative Agent may, or at the direction of the Required LendersLenders shall, by written notice to the Servicer (with a copy to and the Backup Servicer and the Collateral Agent) (a “Servicer Termination Notice”), subject to the provisions of Section 7.19, either (i) shall, terminate all of the rights and obligations of the Servicer as Servicer under this AgreementAgreement or (ii) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and simultaneously reappoint the Servicer for a period not to exceed one month (subject to renewal at the sole discretion of the Administrative Agent, acting at the direction of the Required Lenders), at the expiration of which appointment the Servicer’s rights and obligations hereunder shall automatically terminate without further action on the part of any party hereto. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
Appears in 1 contract
Servicer Termination Events. If any one of the following events (a “Servicer Termination Event”) shall occur and be continuingcontinuing on any date:
(a) any failure by the Servicer: (x) Servicer to make any payment, transfer or deposit or to give instructions or notice to the Collection Account (A) Borrower, the Deal Agent or any amount 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 deposited therein by the Servicer (other than any such failure resulting from an administrative made or technical error of the Servicer in the amount so deposited); or (B) within one (1) Business Day after the Servicer becomes aware thatgiven, as a result the case may be, under the terms of an administrative or technical error of the Servicer, any amount previously deposited by the Servicer to the Collection Account was less than the amount required to be deposited therein by the Servicer, the amount of such shortfall; or (y) to deliver to the Collateral Agent the Monthly Report on the related Determination Datethis Agreement;
(b) any failure on the part of the Servicer duly to observe or to perform in any material respect any other covenants or agreements of the Servicer set forth in the Transaction Documents that results in a Material Adverse Effect this Agreement or any representation or warranty of the Servicer made in any other Transaction Document or in any certificate or other writing delivered pursuant to any Transaction Document proving to have been incorrect in any material respect which it is a party as of the time when the same shall have been made, which such failure or default, if capable of cure, shall continue Servicer that continues unremedied for a period of forty-five 30 days after the first to occur of (45i) days (or a longer period, not in excess of ninety (90) days as may be reasonably necessary to remedy such default, if the default is capable of remedy within ninety (90) days or less, and the Servicer delivers an Officer's Certificate to the Deal Agent, the Backup Servicer and the Collateral Agent to the effect that it has commenced, or will promptly commence and diligently pursue, all reasonable efforts to remedy the default) after (x) there shall have been given date on which written notice of such failure or default, requiring the same to be remedied, (1) to the Servicer, by the Collateral Agent or the Deal Agent, or (2) remedied shall have been given to the Servicer by the Collateral Agent at the direction of the Deal Agent or the Borrower and (yii) discovery of such failure or default by the date on which an officer of the ServicerServicer becomes aware thereof;
(c) the entry of a decree any representation, warranty or order certification made by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, receiver, or liquidator for the Servicer in this Agreement or any of its subsidiaries in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings, or for the winding up or liquidation of its respective affairscertificate delivered pursuant to this Agreement shall prove to have been incorrect when made, and the continuance of any such decree or order unstayed and in effect that continues to be unremedied for a period of 60 consecutive 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 entry of any decree or order for relief in respect of Borrower and (ii) the date on which the Servicer or any of its subsidiaries under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, or similar law, whether now or hereafter in effect, which decree or order for relief continues unstayed and in effect for a period of 60 consecutive daysbecomes aware thereof;
(d) the consent by the Servicer or any of its subsidiaries to the appointment of a conservator or receiver or liquidator shall fail in any insolvency, readjustment of debt, marshalling of assets material respect to service the Transferred Loans in accordance with the Credit and liabilities, or similar proceedings of or relating Collection Policy;
(e) an Insolvency Event shall occur with respect to the Servicer or any of its subsidiaries or relating to substantially all of its property; or the admission by the Servicer or any of its subsidiaries in writing of its inability to pay its debts generally as they become due, the filing by the Servicer or any of its subsidiaries of a petition to take advantage of any applicable insolvency or reorganization statute, the making by the Servicer or any of its subsidiaries of an assignment for the benefit of its creditors, or the voluntary suspension by the Servicer or any of its subsidiaries of payment of its obligations;
(e) any delegation of the Servicer's duties that is not permitted by Section 7.1Affiliates;
(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 related to the Collateral reasonably requested by the Deal Agent, the Collateral Agent or any Lender the other Secured Parties as provided herein is not reasonably provided as requestedrequested within five Business Days of the receipt by the Servicer of such request;
(gh) the rendering against the Servicer of one a final judgment, decree or more final judgments, decrees or orders order for the payment of money in excess of United States U.S. $50,000,000 5,000,000 (individually or in the aggregate, ) and the continuance of such judgment, decree or order unsatisfied and in effect for any period of 61or more than 60 consecutive days without a stay of execution;
(hi) 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. $2,500,000 or the occurrence of any event or condition that would permit acceleration of such recourse debt or other obligations if such event or condition has not been waived;
(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
(k) any Change-in-Control of the Servicer is made without the prior written consent of the Borrower and the Deal Agent; or
(l) the Servicer shall fail to pay any principal of maintain its status as a business development company or premium or interest on any indebtedness in an aggregate outstanding principal amount of $50,000,000 or more (“Material Debt”), when as a registered investment company under the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material Debt; or any other default under any agreement or instrument relating to any Material Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Material Debt; or any such Material Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof;
(i) a Termination Event shall have occurred and such Termination Event has not been waived by the Deal Agent;
(j) the Originator or Servicer, if Credit Acceptance is the Servicer, fails to pay when due (or no later than the next Payment Date after the Servicer becomes aware that such payment was not made) the Release Price in excess of $100,000; or
(k) 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 not less than 2.0 to 1.0, or (2) on a Consolidated (as defined in the Credit Agreement) basis, the Servicer fails to maintain, as of the end of each fiscal period as shown in the most recent financial statement delivered by the Servicer pursuant to Section 5.1(k)(ii) and Section 5.1(k)(iii), as applicable, a ratio of Consolidated Funded Debt (as defined in the Credit Agreement) as of such date minus Unrestricted Cash (as defined in the Credit Agreement) as of such date (including in the calculation thereof, for purposes hereof, all Funded Debt (as defined in the Credit Agreement) incurred by a Special Purpose Subsidiary (as defined in the Credit Agreement), whether or not included therein under GAAP) to the Servicer’s Consolidated Tangible Net Worth (as defined in the Credit Agreement) as of such date equal to or less than 5.60 to 1.01940 Act; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Event Events shall not have been remedied, within remedied at the expiration of any applicable cure period prior to the date of the Servicer Termination Notice (defined below)period, the Deal Agent may, or at the direction of the Required LendersAgent, by written notice to the Servicer (with a copy to and the Backup Servicer and the Collateral Agent) (a “Servicer Termination Notice”) shall), may, subject to the provisions of Section 7.26, terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
Appears in 1 contract
Sources: Loan Funding and Servicing Agreement (American Capital Strategies LTD)
Servicer Termination Events. If (a) For purposes of this Agreement, the occurrence and continuance of any one of the following events (shall constitute a “Servicer Termination Event”) shall occur and be continuing:
(ai) any failure by the Servicer: (x) Servicer to deposit to into the Collection Account (A) any amount proceeds or any payment required to be deposited therein so delivered under the terms of this Agreement that continues unremedied for a period of two (2) Business Days;
(ii) any representation or warranty made or deemed made by the Servicer (other than any such failure resulting from an administrative or technical error on behalf of the Servicer in or in connection with this Agreement, the amount so deposited); other Basic Documents, or in any report, certificate, financial statement or other document furnished pursuant to or in connection herewith or therewith or any amendment or modification hereof or thereof, shall prove to have been incorrect when made or deemed made and the circumstance or condition in respect of which such representation or warranty was incorrect shall not have been eliminated or otherwise cured for a period of thirty (B30) within one days;
(1iii) Business Day after the Servicer becomes aware that, as a result of an administrative or technical error of the Servicer, any amount previously deposited failure by the Servicer to the Collection Account was less than the amount required to be deposited therein by the Servicer, the amount of such shortfall; or (y) to deliver to the Collateral Agent Owner Trustee, the Indenture Trustee, and the Seller the Servicer’s Monthly Report on Certificate by the related applicable Determination Date, which failure continues unremedied for a period of five (5) Business Days;
(biv) any failure on the part of the Servicer duly to observe or to perform any other covenants or agreements of the Servicer set forth in this Agreement, which failure (i) could materially and adversely affect the Transaction Documents that results in a Material Adverse Effect or any representation or warranty rights of the Servicer made in any Transaction Document or in any certificate or other writing delivered pursuant to any Transaction Document proving to have been incorrect in any material respect as of the time when the same shall have been made, which such failure or default, if capable of cure, shall continue Noteholders and (ii) continues unremedied for a period of forty-five thirty (4530) days after: (or A) the date of discovery of such failure by a longer period, not in excess Responsible Officer of ninety the Servicer; (90B) days as may be reasonably necessary to remedy such default, if the default is capable of remedy within ninety (90) days or less, and date on which the Servicer delivers an Officer's Certificate to the Deal Agent, the Backup Servicer and the Collateral Agent to the effect that it has commenced, or will promptly commence and diligently pursue, all reasonable efforts to remedy the default) after (x) there shall should reasonably have been given aware of such failure; or (C) written notice of such failure or default, requiring the same to be remedied, (1) to the Servicer, remedied shall have been received by the Collateral Agent Servicer from any of the Owner Trustee, the Indenture Trustee or the Deal Agent, or Noteholders holding at least 25% of the Note Balance of the Outstanding Notes of the Controlling Class;
(2v) to the Servicer by the Collateral Agent at the direction of the Deal Agent or shall cease to be an Eligible Servicer;
(yvi) discovery of such failure or default by an officer of Insolvency Event shall occur with respect to the Servicer;
(cvii) the entry of a decree Servicer has assigned or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, receiver, or liquidator for the Servicer or delegated any of its subsidiaries in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings, or for the winding up or liquidation of its respective affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the entry of any decree or order for relief in respect of the Servicer or any of its subsidiaries obligations under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, or similar law, whether now or hereafter in effect, which decree or order for relief continues unstayed and in effect for a period of 60 consecutive days;
(d) the consent by the Servicer or any of its subsidiaries to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings of or relating to the Servicer or any of its subsidiaries or relating to substantially all of its property; or the admission by the Servicer or any of its subsidiaries in writing of its inability to pay its debts generally as they become due, the filing by the Servicer or any of its subsidiaries of a petition to take advantage of any applicable insolvency or reorganization statute, the making by the Servicer or any of its subsidiaries of an assignment for the benefit of its creditors, or the voluntary suspension by the Servicer or any of its subsidiaries of payment of its obligations;
(e) any delegation of the Servicer's duties that is not permitted by Section 7.1;
(f) any financial information related to the Collateral reasonably requested by the Deal Agent, the Collateral Agent or any Lender as provided herein is not reasonably provided as requested;
(g) 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 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;
(h) the Servicer shall fail to pay any principal of or premium or interest on any indebtedness in an aggregate outstanding principal amount of $50,000,000 or more (“Material Debt”), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material Debt; this Agreement or any other default under any agreement or instrument relating to any Material Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Material Debt; or any such Material Debt shall be declared to be due and payable or required to be prepaid (Basic Document other than by a regularly scheduled required prepayment) prior to in accordance with the stated maturity thereof;
(i) a Termination Event shall have occurred and such Termination Event has not been waived by the Deal Agent;
(j) the Originator or Servicerterms herein and/or therein, if Credit Acceptance is the Servicer, fails to pay when due (or no later than the next Payment Date after the Servicer becomes aware that such payment was not made) the Release Price in excess of $100,000as applicable; or
(kviii) either (1) on a Consolidated (as defined the Servicer has failed to obtain or maintain all licenses and approvals necessary for the conduct of its business in the Credit Agreement) basis, jurisdictions where the Servicer fails failure to maintain, as of do so could reasonably be expected to have a material adverse effect on the end of each fiscal period as shown in Issuer or the most recent financial statement delivered by the Servicer pursuant to Section 5.1(k)(ii) and Section 5.1(k)(iii), as applicable, a Fixed Charge Coverage Ratio (as defined in the Credit Agreement) of not less than 2.0 to 1.0, or (2) on a Consolidated (as defined in the Credit Agreement) basis, the Servicer fails to maintain, as of the end of each fiscal period as shown in the most recent financial statement delivered by the Servicer pursuant to Section 5.1(k)(ii) and Section 5.1(k)(iii), as applicable, a ratio of Consolidated Funded Debt (as defined in the Credit Agreement) as of such date minus Unrestricted Cash (as defined in the Credit Agreement) as of such date (including in the calculation thereof, for purposes hereof, all Funded Debt (as defined in the Credit Agreement) incurred by a Special Purpose Subsidiary (as defined in the Credit Agreement), whether or not included therein under GAAP) to the Servicer’s Consolidated Tangible Net Worth (as defined in the Credit Agreement) as of such date equal to or less than 5.60 to 1.0; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Event shall not have been remedied, within any applicable cure period prior to the date of the Servicer Termination Notice (defined below), the Deal Agent may, or at the direction of the Required Lenders, by written notice to the Servicer (with a copy to the Backup Servicer and the Collateral Agent) (a “Servicer Termination Notice”) shall, terminate all of the rights and obligations of the Servicer as Servicer under this AgreementNoteholders.
Appears in 1 contract
Sources: Sale and Servicing Agreement (California Republic Auto Receivables Trust 2015-2)
Servicer Termination Events. If (a) Servicer’s right to service pursuant to each Servicing Agreement shall terminate upon the occurrence of any one of the following events (each a “Servicer Termination Event”) shall occur and be continuing:):
(ai) any failure by the Servicer: An Event of Default;
(xii) This Servicer Notice is deemed unenforceable;
(iii) Servicer materially breaches or fails to deposit to the Collection Account comply with (A) the Servicing Agreement and such breach or failure continues uncured or unremedied for a period of thirty (30) calendar days or Servicer fails to diligently pursue a cure or remedy (without regard to any amount required to be deposited therein by the Servicer (other than any such failure resulting from an administrative or technical error of the Servicer in the amount so deposited); cure periods) or (B) this Servicer Notice (relating to the deposit or transfer of funds) and such breach or failure continues uncured or unremedied for a period of two (2) Business Days (without regard to any other cure periods), in each case, after a Responsible Officer of a Seller Party or Servicer first learns of it;
(iv) Servicer is unable to comply with the eligibility requirements, or ceases to be an approved servicer, of, in each case, GNMA, HUD or VA;
(v) Servicer fails to make any required servicing advance, to the extent that such failure would be reasonably likely to impair FHA Mortgage Insurance coverage or VA Loan Guaranty Agreement coverage, with respect to the principal portion of any Mortgage Loan or would be reasonably likely to give rise to a liability to HUD, FHA or VA, as determined by Buyer in its good faith discretion;
(vi) Servicer fails to make a required deposit to the Inbound Account (i) which is not cured within one (1) Business Day after of Seller Party’s knowledge of such failure, or (ii) to the extent such failure or failures occur on multiple occasions (regardless of any subsequent cure);
(vii) Servicer becomes aware that, provides a notice of its intent to resign as a result of an administrative or technical error Servicer of the ServicerMortgage Loans and REO Property and a new Servicer reasonably acceptable to Buyer is not promptly appointed;
(viii) Servicer is subject to FHA, HUD or VA fees or penalties which have not been paid or is subject to a set-off by any amount previously deposited by the of FHA, HUD or VA which (A) is reasonably likely to result in a Servicer to the Collection Account was less than the amount required to be deposited therein by the Servicer, the amount of such shortfall; Material Adverse Effect or (yB) to deliver to failure or failures occur on a persistent and material basis after notice or knowledge thereof (regardless of any subsequent cure); or
(ix) There shall occur a Servicer Material Adverse Effect, in the Collateral Agent the Monthly Report on the related Determination Date;determination of Buyer.
(b) any failure on Upon the part of the Servicer duly to observe or to perform any covenants or agreements of the Servicer set forth in the Transaction Documents that results in a Material Adverse Effect or any representation or warranty of the Servicer made in any Transaction Document or in any certificate or other writing delivered pursuant to any Transaction Document proving to have been incorrect in any material respect as of the time when the same shall have been made, which such failure or default, if capable of cure, shall continue unremedied for a period of forty-five (45) days (or a longer period, not in excess of ninety (90) days as may be reasonably necessary to remedy such default, if the default is capable of remedy within ninety (90) days or less, and the Servicer delivers an Officer's Certificate to the Deal Agent, the Backup Servicer and the Collateral Agent to the effect that it has commenced, or will promptly commence and diligently pursue, all reasonable efforts to remedy the default) after (x) there shall have been given written notice of such failure or default, requiring the same to be remedied, (1) to the Servicer, by the Collateral Agent or the Deal Agent, or (2) to the Servicer by the Collateral Agent at the direction of the Deal Agent or (y) discovery of such failure or default by an officer of the Servicer;
(c) the entry occurrence of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, receiver, or liquidator for the Servicer or any of its subsidiaries in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings, or for the winding up or liquidation of its respective affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the entry of any decree or order for relief in respect of the Servicer or any of its subsidiaries under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, or similar law, whether now or hereafter in effect, which decree or order for relief continues unstayed and in effect for a period of 60 consecutive days;
(d) the consent by the Servicer or any of its subsidiaries to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings of or relating to the Servicer or any of its subsidiaries or relating to substantially all of its property; or the admission by the Servicer or any of its subsidiaries in writing of its inability to pay its debts generally as they become due, the filing by the Servicer or any of its subsidiaries of a petition to take advantage of any applicable insolvency or reorganization statute, the making by the Servicer or any of its subsidiaries of an assignment for the benefit of its creditors, or the voluntary suspension by the Servicer or any of its subsidiaries of payment of its obligations;
(e) any delegation of the Servicer's duties that is not permitted by Section 7.1;
(f) any financial information related to the Collateral reasonably requested by the Deal Agent, the Collateral Agent or any Lender as provided herein is not reasonably provided as requested;
(g) 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 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;
(h) the Servicer shall fail to pay any principal of or premium or interest on any indebtedness in an aggregate outstanding principal amount of $50,000,000 or more (“Material Debt”), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material Debt; or any other default under any agreement or instrument relating to any Material Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Material Debt; or any such Material Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof;
(i) a Termination Event shall have occurred and such Termination Event has not been waived by the Deal Agent;
(j) the Originator or Servicer, if Credit Acceptance is the Servicer, fails to pay when due (or no later than the next Payment Date after the Servicer becomes aware that such payment was not made) the Release Price in excess of $100,000; or
(k) 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 not less than 2.0 to 1.0, or (2) on a Consolidated (as defined in the Credit Agreement) basis, the Servicer fails to maintain, as of the end of each fiscal period as shown in the most recent financial statement delivered by the Servicer pursuant to Section 5.1(k)(ii) and Section 5.1(k)(iii), as applicable, a ratio of Consolidated Funded Debt (as defined in the Credit Agreement) as of such date minus Unrestricted Cash (as defined in the Credit Agreement) as of such date (including in the calculation thereof, for purposes hereof, all Funded Debt (as defined in the Credit Agreement) incurred by a Special Purpose Subsidiary (as defined in the Credit Agreement), whether or not included therein under GAAP) to the Servicer’s Consolidated Tangible Net Worth (as defined in the Credit Agreement) as of such date equal to or less than 5.60 to 1.0; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Event at the Request of Buyer, Servicer shall not have been remedied, within any applicable cure period prior transfer the servicing to a successor servicer in accordance with the date terms of the Servicer Termination Notice (defined below), the Deal Agent may, or at the direction of the Required Lenders, by written notice to the Servicer (with a copy to the Backup Servicer and the Collateral Agent) (a “Servicer Termination Notice”) shall, terminate all of the rights and obligations of the Servicer as Servicer under this Servicing Agreement.
Appears in 1 contract
Sources: Master Repurchase Agreement (Walter Investment Management Corp)
Servicer Termination Events. (a) If any one of the following events (a “Servicer Termination Event”) shall occur and be continuingcontinuing on any day:
(ai) any failure by the Servicer: Servicer to make any payment, transfer or deposit as required by this Agreement and such failure shall continue for two (x2) to deposit to the Collection Account Business Days;
(Aii) any amount required to be deposited therein by the Servicer (other than any such failure resulting from an administrative or technical error of the Servicer in the amount so deposited); or (B) within one (1) Business Day after the Servicer becomes aware that, as a result of an administrative or technical error of the Servicer, any amount previously deposited by the Servicer to give instructions or notice to the Collection Account was less than Borrower, any Managing Agent and/or the amount Administrative 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 instructions, notice or report is required to be deposited therein by made or given, as the Servicercase may be, under the amount terms of such shortfall; or (y) to deliver to the Collateral Agent the Monthly Report on the related Determination Datethis Agreement;
(biii) any failure on the part of the Servicer duly to observe or to perform in any material respect any other covenants or agreements of the Servicer set forth in the Transaction Documents that results in a Material Adverse Effect this Agreement or any representation or warranty other Transaction Document to which it is a party as Servicer that continues unremedied for a period of fifteen (15) days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Managing Agent or the Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof;
(iv) any representation, warranty or certification made by the Servicer in any Transaction Document this Agreement or in any certificate or other writing delivered pursuant to any Transaction Document proving this Agreement shall prove to have been false or incorrect in any material respect as of the time when the same shall have been made, which made and such failure or defaultfailure, if capable of susceptible to a cure, shall continue unremedied for a period of forty-five fifteen (4515) days after the first to occur of (or a longer period, not in excess of ninety (90i) days as may be reasonably necessary to remedy such default, if the default is capable of remedy within ninety (90) days or less, and the Servicer delivers an Officer's Certificate to the Deal Agent, the Backup Servicer and the Collateral Agent to the effect that it has commenced, or will promptly commence and diligently pursue, all reasonable efforts to remedy the default) after (x) there shall have been given date on which written notice of such failure or default, requiring the same to be remedied, (1) to the Servicer, by the Collateral Agent or the Deal Agent, or (2) remedied shall have been given to the Servicer by the Collateral Agent at the direction of the Deal Administrative Agent, any Managing Agent or the Borrower and (yii) discovery of such failure the date on which the Servicer becomes or default by reasonably should have become aware thereof;
(v) the Servicer shall fail to service the Transferred Loans in accordance with the Credit and Collection Policy;
(vi) an officer of Insolvency Event shall occur with respect to the Servicer;
(cvii) the entry of a decree or order by a court or agency or supervisory authority having jurisdiction in Servicer agrees to materially alter the premises for Credit and Collection Policy without the appointment of a conservator, receiver, or liquidator for the Servicer or any of its subsidiaries in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings, or for the winding up or liquidation of its respective affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the entry of any decree or order for relief in respect prior written consent of the Servicer or any of its subsidiaries under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, or similar law, whether now or hereafter in effect, which decree or order for relief continues unstayed and in effect for a period of 60 consecutive daysRequired Lenders;
(d) the consent by the Servicer or any of its subsidiaries to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings of or relating to the Servicer or any of its subsidiaries or relating to substantially all of its property; or the admission by the Servicer or any of its subsidiaries in writing of its inability to pay its debts generally as they become due, the filing by the Servicer or any of its subsidiaries of a petition to take advantage of any applicable insolvency or reorganization statute, the making by the Servicer or any of its subsidiaries of an assignment for the benefit of its creditors, or the voluntary suspension by the Servicer or any of its subsidiaries of payment of its obligations;
(e) any delegation of the Servicer's duties that is not permitted by Section 7.1;
(fviii) any financial or asset information related to the Collateral reasonably requested by the Deal Agent, the Collateral Administrative Agent or any Lender Managing Agent as provided herein is not reasonably provided as requestedrequested within five (5) Business Days (or such longer period as the Administrative Agent or such Managing Agent may consent to) of the receipt by the Servicer of such request;
(gix) the rendering against the Servicer of one a final judgment, decree or more final judgments, decrees or orders order for the payment of money in excess of United States U.S. $50,000,000 5,000,000 (individually or in the aggregate, ) and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than 60 30 consecutive days without a stay of execution;
(hx) the Servicer shall fail failure of the Performance Guarantor to pay make any principal of payment due with respect to aggregate recourse debt or premium or interest on any indebtedness in other obligations with an aggregate outstanding principal amount exceeding U.S. $1,000,000 or the occurrence of $50,000,000 any event or more (“Material Debt”), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material Debt; or any other default under any agreement or instrument relating to any Material Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect condition that would permit acceleration of such default recourse debt or other obligations if such event is to accelerate, or to permit the acceleration of, the maturity of such Material Debt; or any such Material Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereofcondition has not been waived;
(ixi) any Guarantor Event of Default shall occur;
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or a Termination Event shall have occurred material adverse change occurs with regard to the collectibility of the Transferred Loans, taken as a whole;
(xiii) any Change-in-Control of the Servicer is made without the prior written consent of the Borrower and such Termination Event has not been waived by the Deal Administrative Agent;
(jxiv) the Originator or ServicerPerformance Guarantor shall fail to maintain a minimum Net Worth equal to the sum of (i) of $200,000,000 plus (ii) 50% of any equity and Subordinated Debt issued by the Performance Guarantor after May 15, if Credit Acceptance is the Servicer, fails to pay when due 2009;
(or no later than the next Payment Date after the Servicer becomes aware that such payment was not madexv) the Release Price in excess of $100,000Performance Guarantor shall fail to satisfy the RIC/BDC Requirements; or
(kxvi) either (1) on the Performance Guarantor shall pay any cash dividends; provided that the Performance Guarantor shall be permitted to pay cash dividends if the Servicer shall have caused the Performance Guarantor to have delivered a Consolidated (as defined certificate to the Administrative Agent, substantially in the Credit Agreementform of Exhibit G hereto, at least 10 Business Days prior to the making of any such cash dividend to the effect that (i) basis, the Servicer fails to maintain, as amount of the end declared dividend has been determined in good faith by the Board of each fiscal period as shown in Directors of the Performance Guarantor on the basis of the most recent current financial statement delivered information of the Performance Guarantor then available for the related period; (ii) the amount of the declared dividend does not exceed the net investment income and the net capital gain realized by the Servicer pursuant Performance Guarantor for the related period, based on the financial information referred to Section 5.1(k)(iiin clause (i) above; and Section 5.1(k)(iii), as applicable, a Fixed Charge Coverage Ratio (as defined in the Credit Agreement) of not less than 2.0 to 1.0, or (2) on a Consolidated (as defined in the Credit Agreement) basis, the Servicer fails to maintain, as of the end of each fiscal period as shown in the most recent financial statement delivered by the Servicer pursuant to Section 5.1(k)(ii) and Section 5.1(k)(iii), as applicable, a ratio of Consolidated Funded Debt (as defined in the Credit Agreement) as of such date minus Unrestricted Cash (as defined in the Credit Agreement) as of such date (including in the calculation thereof, for purposes hereof, all Funded Debt (as defined in the Credit Agreement) incurred by a Special Purpose Subsidiary (as defined in the Credit Agreement), whether or not included therein under GAAPiii) to the Servicer’s Consolidated Tangible Net Worth extent the declared dividend does not equal the net investment income and the net capital gain realized by the Performance Guarantor for the related period, the proposed dividend to be declared by the Performance Guarantor for the immediately ensuing period shall be either (as defined in x) reduced by the Credit Agreementamount such dividend for the immediately preceding period exceeded the net investment income and the net capital gain realized by the Performance Guarantor for the immediately preceding period or (y) as of increased by the amount such date equal to dividend or distribution for the immediately preceding period was less than 5.60 the net investment income and the net capital gains realized by the Performance Guarantor for the immediately preceding period; provided, however, that for purposes of this Section 7.18(xvi), net investment income shall not be reduced by non-cash compensation expenses related to 1.0employee loans made prior to the Effective Date for the exercise of employee stock options and calculated as the difference between (a) the outstanding loan balances plus accrued interest and (b) the value of the underlying stock at the determination date; then then, notwithstanding anything herein to the contrary, so long as any such Servicer Termination Event Events shall not have been remedied, within remedied at the expiration of any applicable cure period prior to the date of the Servicer Termination Notice (defined below)period, the Deal Administrative Agent may, or at the direction of the Required LendersLenders shall, by written notice to the Servicer (with a copy to and the Backup Servicer and the Collateral Agent) (a “Servicer Termination Notice”), subject to the provisions of Section 7.19, either (i) shall, terminate all of the rights and obligations of the Servicer as Servicer under this AgreementAgreement or (ii) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and simultaneously reappoint the Servicer for a period not to exceed one month (subject to renewal at the sole discretion of the Administrative Agent, acting at the direction of the Required Lenders), at the expiration of which appointment the Servicer’s rights and obligations hereunder shall automatically terminate without further action on the part of any party hereto. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
Appears in 1 contract
Servicer Termination Events. (a) If any one of the following events (a “Servicer Termination Event”) shall occur and be continuingcontinuing on any day:
(ai) any failure by the Servicer: Servicer to make any payment, transfer or deposit as required by this Agreement and such failure shall continue for two (x2) to deposit to the Collection Account Business Days;
(Aii) any amount required to be deposited therein by the Servicer (other than any such failure resulting from an administrative or technical error of the Servicer in the amount so deposited); or (B) within one (1) Business Day after the Servicer becomes aware that, as a result of an administrative or technical error of the Servicer, any amount previously deposited by the Servicer to give instructions or notice to the Collection Account was less than Borrower, any Managing Agent and/or the amount Administrative Agent as required by this Agreement or to deliver any Required Reports hereunder on or before the date occurring two (2) Business Days after the date such instructions, notice or report is required to be deposited therein by made or given, as the Servicercase may be, under the amount terms of such shortfall; or (y) to deliver to the Collateral Agent the Monthly Report on the related Determination Datethis Agreement;
(biii) any failure on the part of the Servicer duly to observe or to perform in any material respect any other covenants or agreements of the Servicer set forth in the Transaction Documents that results in a Material Adverse Effect this Agreement or any representation or warranty other Transaction Document to which it is a party as Servicer that continues unremedied for a period of fifteen (15) days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Managing Agent or the Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof;
(iv) any representation, warranty or certification made by the Servicer in any Transaction Document this Agreement or in any certificate or other writing delivered pursuant to any Transaction Document proving this Agreement shall prove to have been false or incorrect in any material respect as of the time when the same shall have been made, which made and such failure or defaultfailure, if capable of susceptible to a cure, shall continue unremedied for a period of forty-five fifteen (4515) days after the first to occur of (or a longer period, not in excess of ninety (90i) days as may be reasonably necessary to remedy such default, if the default is capable of remedy within ninety (90) days or less, and the Servicer delivers an Officer's Certificate to the Deal Agent, the Backup Servicer and the Collateral Agent to the effect that it has commenced, or will promptly commence and diligently pursue, all reasonable efforts to remedy the default) after (x) there shall have been given date on which written notice of such failure or default, requiring the same to be remedied, (1) to the Servicer, by the Collateral Agent or the Deal Agent, or (2) remedied shall have been given to the Servicer by the Collateral Agent at the direction of the Deal Administrative Agent, any Managing Agent or the Borrower and (yii) discovery of such failure the date on which the Servicer becomes or default by reasonably should have become aware thereof;
(v) the Servicer shall fail to service the Transferred Loans in accordance with the Credit and Collection Policy;
(vi) an officer of Insolvency Event shall occur with respect to the Servicer;
(cvii) the entry of a decree or order by a court or agency or supervisory authority having jurisdiction in Servicer agrees to materially alter the premises for Credit and Collection Policy without the appointment of a conservator, receiver, or liquidator for the Servicer or any of its subsidiaries in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings, or for the winding up or liquidation of its respective affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the entry of any decree or order for relief in respect prior written consent of the Servicer or any of its subsidiaries under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, or similar law, whether now or hereafter in effect, which decree or order for relief continues unstayed and in effect for a period of 60 consecutive daysRequired Lenders;
(d) the consent by the Servicer or any of its subsidiaries to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings of or relating to the Servicer or any of its subsidiaries or relating to substantially all of its property; or the admission by the Servicer or any of its subsidiaries in writing of its inability to pay its debts generally as they become due, the filing by the Servicer or any of its subsidiaries of a petition to take advantage of any applicable insolvency or reorganization statute, the making by the Servicer or any of its subsidiaries of an assignment for the benefit of its creditors, or the voluntary suspension by the Servicer or any of its subsidiaries of payment of its obligations;
(e) any delegation of the Servicer's duties that is not permitted by Section 7.1;
(fviii) any financial or asset information related to the Collateral reasonably requested by the Deal Agent, the Collateral Administrative Agent or any Lender Managing Agent as provided herein is not reasonably provided as requestedrequested within five (5) Business Days (or such longer period as the Administrative Agent or such Managing Agent may consent to) of the receipt by the Servicer of such request;
(gix) the rendering against the Servicer of one a final judgment, decree or more final judgments, decrees or orders order for the payment of money in excess of United States U.S. $50,000,000 5,000,000 (individually or in the aggregate, ) and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than 60 thirty (30) consecutive days without a stay of execution;
(hx) the Servicer shall fail failure of the Performance Guarantor to pay make any principal of payment due with respect to aggregate recourse debt or premium or interest on any indebtedness in other obligations with an aggregate outstanding principal amount exceeding U.S. $1,000,000 or the occurrence of $50,000,000 any event or more (“Material Debt”), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material Debt; or any other default under any agreement or instrument relating to any Material Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect condition that would permit acceleration of such default recourse debt or other obligations if such event is to accelerate, or to permit the acceleration of, the maturity of such Material Debt; or any such Material Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereofcondition has not been waived;
(ixi) any Guarantor Event of Default shall occur;
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or a Termination Event shall have occurred material adverse change occurs with regard to the collectibility of the Transferred Loans, taken as a whole;
(xiii) any Change-in-Control of the Servicer is made without the prior written consent of the Borrower and such Termination Event has not been waived by the Deal Administrative Agent;
(jxiv) the Originator Performance Guarantor shall fail to maintain a minimum Net Worth equal to the sum of (i) of $325,000,000 plus (ii) 50% of any equity and Subordinated Debt issued by the Performance Guarantor after the Restatement Date minus (iii) 50% of any equity and Subordinated Debt retired or Servicerredeemed by the Performance Guarantor after the Restatement Date; provided that, if Credit Acceptance is in no event shall the Servicerminimum Net Worth be less than $325,000,000;
(xv) the Performance Guarantor shall fail to satisfy the RIC/BDC Requirements;
(xvi) the Performance Guarantor shall fail to maintain “asset coverage” (as defined in and determined pursuant to Section 18 of the 1940 Act, fails to pay when due as modified by Section 61 of the ▇▇▇▇ ▇▇▇) of at least 150% (or no later than such percentage as may be set forth in Section 18 of the next Payment Date after the Servicer becomes aware 1940 Act, as modified by ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇); provided, that such payment was not madefor purposes of testing compliance with this Section 7.18(a)(xvi) the Release Price in excess impact of $100,000the election of ASC 825 or similar accounting guideline with respect to determining the fair value of the debt of the Performance Guarantor on a consolidated basis shall be excluded (for avoidance of doubt, the intent of this language is to cause the debt of the Performance Guarantor to be valued at par value rather than fair value)); or
(kxvii) either the Performance Guarantor shall pay any cash dividends; provided that the Performance Guarantor shall be permitted to pay cash dividends if the Servicer shall have caused the Performance Guarantor to have delivered a certificate to the Administrative Agent, substantially in the form of Exhibit G hereto, at least ten (110) Business Days prior to the making of any such cash dividend to the effect that:
(A) the amount of the declared dividend has been determined in good faith by the Board of Directors of the Performance Guarantor on a Consolidated the basis of the most current financial projections of the Performance Guarantor then available for the Related Period (as defined in Exhibit G hereof);
(B) the Credit Agreement) basis, the Servicer fails to maintain, as amount of the end declared dividend does not exceed the sum of each fiscal period as shown in (i) the most recent financial statement delivered net investment income and the net capital gain projected to be realized by the Servicer pursuant Performance Guarantor for the Related Period based on the financial projections referred to in clause (A) above, and (ii) the amounts deemed by the Performance Guarantor to be considered as having been paid during the prior year in accordance with Section 5.1(k)(ii855(a) of the Code (together clauses (i) and Section 5.1(k)(iii(ii) comprising the “Projected Available Amount”), as applicable, a Fixed Charge Coverage Ratio ; and
(as defined in the Credit Agreement) of not less than 2.0 to 1.0, or (2) on a Consolidated (as defined in the Credit Agreement) basis, the Servicer fails to maintain, as of the end of each fiscal period as shown in the most recent financial statement delivered by the Servicer pursuant to Section 5.1(k)(ii) and Section 5.1(k)(iii), as applicable, a ratio of Consolidated Funded Debt (as defined in the Credit Agreement) as of such date minus Unrestricted Cash (as defined in the Credit Agreement) as of such date (including in the calculation thereof, for purposes hereof, all Funded Debt (as defined in the Credit Agreement) incurred by a Special Purpose Subsidiary (as defined in the Credit Agreement), whether or not included therein under GAAPC) to the Servicer’s Consolidated Tangible Net Worth extent the declared dividend referred to in clause (B) above exceeds the sum of (i) the net investment income and the net capital gain actually realized by the Performance Guarantor for the Related Period, plus (ii) the amounts deemed by Performance Guarantor to be considered as defined having been paid during the prior year in accordance with Section 855(a) of the Credit Agreement) as of such date equal to or less than 5.60 to 1.0Code (the “Excess Payment”); then the proposed dividend to be declared by the Performance Guarantor for the immediately ensuing Related Period shall be reduced by any positive amount resulting from the following calculation: (x) the ensuing Related Period’s proposed declared dividend plus the Excess Payment minus (y) the ensuing Related Period’s Projected Available Amount. then, notwithstanding anything herein to the contrary, so long as any such Servicer Termination Event Events shall not have been remedied, within remedied at the expiration of any applicable cure period prior to the date of the Servicer Termination Notice (defined below)period, the Deal Administrative Agent may, or at the direction of the Required LendersLenders shall, by written notice to the Servicer (with a copy to and the Backup Servicer and the Collateral Agent) (a “Servicer Termination Notice”), subject to the provisions of Section 7.19, either (i) shall, terminate all of the rights and obligations of the Servicer as Servicer under this AgreementAgreement or (ii) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and simultaneously reappoint the Servicer for a period not to exceed one month (subject to renewal at the sole discretion of the Administrative Agent, acting at the direction of the Required Lenders), at the expiration of which appointment the Servicer’s rights and obligations hereunder shall automatically terminate without further action on the part of any party hereto. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
Appears in 1 contract
Servicer Termination Events. (a) If any one of the following events (a “Servicer Termination Event”) shall occur and be continuingcontinuing on any day:
(ai) any failure by the Servicer: Servicer to make any payment, transfer or deposit as required by this Agreement and such failure shall continue for two (x2) to deposit to the Collection Account Business Days;
(Aii) any amount required to be deposited therein by the Servicer (other than any such failure resulting from an administrative or technical error of the Servicer in the amount so deposited); or (B) within one (1) Business Day after the Servicer becomes aware that, as a result of an administrative or technical error of the Servicer, any amount previously deposited by the Servicer to give instructions or notice to the Collection Account was less than Borrower, any Managing Agent and/or the amount Administrative 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 instructions, notice or report is required to be deposited therein by made or given, as the Servicercase may be, under the amount terms of such shortfall; or (y) to deliver to the Collateral Agent the Monthly Report on the related Determination Datethis Agreement;
(biii) any failure on the part of the Servicer duly to observe or to perform in any material respect any other covenants or agreements of the Servicer set forth in the Transaction Documents that results in a Material Adverse Effect this Agreement or any representation or warranty other Transaction Document to which it is a party as Servicer that continues unremedied for a period of fifteen (15) days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent, any Managing Agent or the Borrower and (ii) the date on which the Servicer becomes or reasonably should have become aware thereof;
(iv) any representation, warranty or certification made by the Servicer in any Transaction Document this Agreement or in any certificate or other writing delivered pursuant to any Transaction Document proving this Agreement shall prove to have been false or incorrect in any material respect as of the time when the same shall have been made, which made and such failure or defaultfailure, if capable of susceptible to a cure, shall continue unremedied for a period of forty-five fifteen (4515) days after the first to occur of (or a longer period, not in excess of ninety (90i) days as may be reasonably necessary to remedy such default, if the default is capable of remedy within ninety (90) days or less, and the Servicer delivers an Officer's Certificate to the Deal Agent, the Backup Servicer and the Collateral Agent to the effect that it has commenced, or will promptly commence and diligently pursue, all reasonable efforts to remedy the default) after (x) there shall have been given date on which written notice of such failure or default, requiring the same to be remedied, (1) to the Servicer, by the Collateral Agent or the Deal Agent, or (2) remedied shall have been given to the Servicer by the Collateral Agent at the direction of the Deal Administrative Agent, any Managing Agent or the Borrower and (yii) discovery of such failure the date on which the Servicer becomes or default by reasonably should have become aware thereof;
(v) the Servicer shall fail to service the Transferred Loans in accordance with the Credit and Collection Policy;
(vi) an officer of Insolvency Event shall occur with respect to the Servicer;
(cvii) the entry of a decree or order by a court or agency or supervisory authority having jurisdiction in Servicer agrees to materially alter the premises for Credit and Collection Policy without the appointment of a conservator, receiver, or liquidator for the Servicer or any of its subsidiaries in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings, or for the winding up or liquidation of its respective affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the entry of any decree or order for relief in respect prior written consent of the Servicer or any of its subsidiaries under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, or similar law, whether now or hereafter in effect, which decree or order for relief continues unstayed and in effect for a period of 60 consecutive daysRequired Lenders;
(d) the consent by the Servicer or any of its subsidiaries to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings of or relating to the Servicer or any of its subsidiaries or relating to substantially all of its property; or the admission by the Servicer or any of its subsidiaries in writing of its inability to pay its debts generally as they become due, the filing by the Servicer or any of its subsidiaries of a petition to take advantage of any applicable insolvency or reorganization statute, the making by the Servicer or any of its subsidiaries of an assignment for the benefit of its creditors, or the voluntary suspension by the Servicer or any of its subsidiaries of payment of its obligations;
(e) any delegation of the Servicer's duties that is not permitted by Section 7.1;
(fviii) any financial or asset information related to the Collateral reasonably requested by the Deal Agent, the Collateral Administrative Agent or any Lender Managing Agent as provided herein is not reasonably provided as requestedrequested within five (5) Business Days (or such longer period as the Administrative Agent or such Managing Agent may consent to) of the receipt by the Servicer of such request;
(gix) the rendering against the Servicer of one a final judgment, decree or more final judgments, decrees or orders order for the payment of money in excess of United States U.S. $50,000,000 5,000,000 (individually or in the aggregate, ) and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than 60 30 consecutive days without a stay of execution;
(hx) the Servicer shall fail failure of the Performance Guarantor to pay make any principal of payment due with respect to aggregate recourse debt or premium or interest on any indebtedness in other obligations with an aggregate outstanding principal amount exceeding U.S. $1,000,000 or the occurrence of $50,000,000 any event or more (“Material Debt”), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material Debt; or any other default under any agreement or instrument relating to any Material Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect condition that would permit acceleration of such default recourse debt or other obligations if such event is to accelerate, or to permit the acceleration of, the maturity of such Material Debt; or any such Material Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereofcondition has not been waived;
(ixi) any Guarantor Event of Default shall occur;
(xii) any Material Adverse Change occurs in the financial condition of the Servicer or a Termination Event shall have occurred material adverse change occurs with regard to the collectibility of the Transferred Loans, taken as a whole;
(xiii) any Change-in-Control of the Servicer is made without the prior written consent of the Borrower and such Termination Event has not been waived by the Deal Administrative Agent;
(jxiv) the Originator or ServicerPerformance Guarantor shall fail to maintain a minimum Net Worth equal to the sum of (i) of $190,000,000 plus (ii) 50% of any equity and Subordinated Debt issued by the Performance Guarantor after January 19, if Credit Acceptance is 2012;
(xv) the Servicer, fails Performance Guarantor shall fail to pay when due satisfy the RIC/BDC Requirements;
(xvi) the Performance Guarantor shall fail to maintain “asset coverage” (as defined in and determined pursuant to Section 18 of the ▇▇▇▇ ▇▇▇) with respect to its “senior securities representing indebtedness” (as defined in Section 18 of the ▇▇▇▇ ▇▇▇) of at least 200% (or no later than such higher percentage as may be set forth in Section 18 of the next Payment Date after the Servicer becomes aware 1940 Act); provided, that such payment was not madefor purposes of testing compliance with this Section 7.18(a)(xvi) the Release Price in excess impact of $100,000the election of ASC 825 or similar accounting guideline with respect to determining the fair value of the debt of the Performance Guarantor on a consolidated basis shall be excluded (for avoidance of doubt, the intent of this language is to cause the debt of the Performance Guarantor to be valued at par value rather than fair value)); or
(kxvii) either (1) on the Performance Guarantor shall pay any cash dividends; provided that the Performance Guarantor shall be permitted to pay cash dividends if the Servicer shall have caused the Performance Guarantor to have delivered a Consolidated (as defined certificate to the Administrative Agent, substantially in the Credit Agreementform of Exhibit G hereto, at least 10 Business Days prior to the making of any such cash dividend to the effect that (i) basis, the Servicer fails to maintain, as amount of the end declared dividend has been determined in good faith by the Board of each fiscal period as shown in Directors of the Performance Guarantor on the basis of the most recent current financial statement delivered information of the Performance Guarantor then available for the related period; (ii) the amount of the declared dividend does not exceed the net investment income and the net capital gain realized by the Servicer pursuant Performance Guarantor for the related period, based on the financial information referred to Section 5.1(k)(iiin clause (i) above; and Section 5.1(k)(iii), as applicable, a Fixed Charge Coverage Ratio (as defined in the Credit Agreement) of not less than 2.0 to 1.0, or (2) on a Consolidated (as defined in the Credit Agreement) basis, the Servicer fails to maintain, as of the end of each fiscal period as shown in the most recent financial statement delivered by the Servicer pursuant to Section 5.1(k)(ii) and Section 5.1(k)(iii), as applicable, a ratio of Consolidated Funded Debt (as defined in the Credit Agreement) as of such date minus Unrestricted Cash (as defined in the Credit Agreement) as of such date (including in the calculation thereof, for purposes hereof, all Funded Debt (as defined in the Credit Agreement) incurred by a Special Purpose Subsidiary (as defined in the Credit Agreement), whether or not included therein under GAAPiii) to the Servicer’s Consolidated Tangible Net Worth extent the declared dividend does not equal the net investment income and the net capital gain realized by the Performance Guarantor for the related period, the proposed dividend to be declared by the Performance Guarantor for the immediately ensuing period shall be either (as defined in x) reduced by the Credit Agreementamount such dividend for the immediately preceding period exceeded the net investment income and the net capital gain realized by the Performance Guarantor for the immediately preceding period or (y) as of increased by the amount such date equal to dividend or distribution for the immediately preceding period was less than 5.60 the net investment income and the net capital gains realized by the Performance Guarantor for the immediately preceding period; provided, however, that for purposes of this Section 7.18(xvi), net investment income shall not be reduced by non-cash compensation expenses related to 1.0employee loans made prior to the Effective Date for the exercise of employee stock options and calculated as the difference between (a) the outstanding loan balances plus accrued interest and (b) the value of the underlying stock at the determination date; then then, notwithstanding anything herein to the contrary, so long as any such Servicer Termination Event Events shall not have been remedied, within remedied at the expiration of any applicable cure period prior to the date of the Servicer Termination Notice (defined below)period, the Deal Administrative Agent may, or at the direction of the Required LendersLenders shall, by written notice to the Servicer (with a copy to and the Backup Servicer and the Collateral Agent) (a “Servicer Termination Notice”), subject to the provisions of Section 7.19, either (i) shall, terminate all of the rights and obligations of the Servicer as Servicer under this AgreementAgreement or (ii) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and simultaneously reappoint the Servicer for a period not to exceed one month (subject to renewal at the sole discretion of the Administrative Agent, acting at the direction of the Required Lenders), at the expiration of which appointment the Servicer’s rights and obligations hereunder shall automatically terminate without further action on the part of any party hereto. The Borrower shall pay all reasonable set-up and conversion costs associated with the transfer of servicing rights to the Successor Servicer.
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