Servicer Termination Events. (1) The occurrence of any one or more of the following shall be a “servicer termination event” in relation to the Series 2019-1 Ownership Interest: (a) the Servicer fails to make any distribution, transfer or deposit required in respect of the Series 2019-1 Ownership Interest and such failure continues for a period of five (5) Business Days, or the Servicer fails to observe or perform any covenant or agreement contained in the Pooling and Servicing Agreement or this Series 2019-1 Purchase Agreement, if such failure has a material adverse effect on the ability of the Series 2019-1 Co-Owner to satisfy its obligations to holders of the Series 2019-1 Senior Notes or the Series 2019-1 Subordinated Notes and continues unremedied for a period of thirty (30) Business Days after delivery by the Custodian or the Issuer Trustee of written notice thereof to the Servicer; (b) any representation or warranty made by the Servicer in the Pooling and Servicing Agreement or this Series 2019-1 Purchase Agreement is found to have been incorrect when made, or any information required thereby or hereby to be given by the Servicer is found to have been incorrect when given, and such incorrect representation, warranty or information has a material adverse effect on the ability of the Series 2019-1 Co-Owner to satisfy its obligations to holders of the Series 2019-1 Senior Notes or the Series 2019-1 Subordinated Notes and continues to be incorrect or unremedied for a period of thirty (30) Business Days after delivery by the Custodian or the Issuer Trustee of written notice thereof to the Servicer; (c) except where the terms of Section 9.5 of the Pooling and Servicing Agreement have been complied with, there is commenced against the Servicer any proceeding or the taking of any step by or against the Servicer for the dissolution, liquidation or winding up of the Servicer or for any relief from the laws of any jurisdiction relating to bankruptcy, insolvency, reorganization, arrangement, compromise or winding up, or for the appointment of one or more of a trustee, receiver, receiver and manager, custodian, liquidator or other person with similar powers with respect to the Servicer, unless such proceeding or step is being contested in good faith by the Servicer; (d) the Servicer ceases to carry on a revolving credit card business except in the course of carrying out a transaction in respect of which the conditions of Section 9.4 or Section 9.5 of the Pooling and Servicing Agreement are observed and performed; and (e) if CT Bank is the Servicer and a Standby Servicer and an Independent Investment Advisor have been appointed and have agreed to act under Section 9.2, the Independent Investment Advisor notifies the Series 2019-1 Co-Owner, the Administrator and CT Bank in writing that: (i) in its reasonable opinion, there has been a material adverse change in the financial condition or operation of CT Bank that is reasonably likely to result in CT Bank being unable to pay its liabilities as they become due within ninety (90) days of the date on which the Independent Investment Advisor became aware of such material adverse change, and (ii) as a result of such material adverse change, the Independent Investment Advisor believes that it is in the best interests of the holders of Series 2019-1 Notes that CT Bank be replaced as the Servicer by the Standby Servicer, and accordingly, the Independent Investment Advisor recommends in writing that CT Bank be so replaced as Servicer; provided, however, that no servicer termination event in respect of the Series 2019-1 Ownership Interest will be considered to have occurred if, on or before the fifth (5th) Business Day occurring after such recommendation, the holders of the Series 2019-1 Notes provide the Issuer Trustee with a Noteholder Direction to the effect that such event shall not give rise to a servicer termination event for these purposes. (2) A servicer termination event in respect of the Series 2019-1 Ownership Interest may be waived by the Series 2019-1 Co-Owner.
Appears in 1 contract
Sources: Series Purchase Agreement
Servicer Termination Events. (1a) The occurrence of any In case one or more of the following events (each a "Servicer Termination Event") by the Servicer shall occur and be a “servicer termination event” in relation continuing, that is to the Series 2019-1 Ownership Interestsay:
(ai) (A) the failure by the Servicer fails to make any distributionrequired Servicing Advance, transfer or deposit required in respect to the extent such failure materially and adversely affects the interests of the Series 2019-1 Ownership Interest Noteholders; or (B) any failure by the Servicer to remit to Noteholders and Hedge Counterparties, or to the Indenture Trustee for the benefit of the Noteholders, or to the Owner Trustee for the benefit of the Certificateholders, any payment required to be made under the terms of the Basic Documents which continues unremedied for one Business Day after such payment was required to be made; or
(ii) failure by the Servicer or the Seller duly to observe or perform, in any material respect, any other covenants, obligations or agreements of the Servicer or the Seller as set forth in the Basic Documents, which failure continues unremedied for a period of five 30 days (5if such failure can be remedied) Business Daysafter the earlier 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 or the Seller, as the case may be, by the Indenture Trustee or to the Servicer, or the Seller, as the case may be, and the Indenture Trustee by any Noteholder, Certificateholder or Hedge Counterparty or (B) the date a Responsible Officer of the Servicer fails receives actual knowledge of such failure; or
(iii) a decree or order of a court or agency or supervisory authority having jurisdiction for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force, undischarged or unstayed for a period of 60 days; or
(iv) the Servicer shall consent to observe the appointment of a conservator or perform receiver or liquidator in any covenant insolvency, readjustment of debt, marshaling of assets and liabilities or agreement contained similar proceedings of or relating to the Servicer or of or relating to all or substantially all of the Servicer's property; or
(v) the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the Pooling benefit of its creditors, or voluntarily suspend payment of its obligations; or
(vi) without the prior written consent of the Administrative Agent, which consent shall not be unreasonably withheld, the Servicer agrees or consents to, or otherwise permits to occur, any amendment, modification, change, supplement or recision of or to the Servicer or the Credit and Servicing Agreement Collection Policy, in whole or this Series 2019-1 Purchase Agreementin part, if such failure has in any manner that could have a material adverse effect on the ability SBA Loans; provided that the consent of the Series 2019-1 Co-Owner to satisfy its obligations to holders Administrative Agent shall not be required if any such amendment, modification, change, supplement or recision was mandated by the Servicer's regulators including, but not limited to, the SBA; or
(vii) without the prior written consent of the Series 2019-1 Senior Notes or the Series 2019-1 Subordinated Notes and continues unremedied for Administrative Agent, a period of thirty (30) Business Days after delivery by the Custodian or the Issuer Trustee of written notice thereof to the Servicer;
(b) any representation or warranty made by the Servicer Change in the Pooling and Servicing Agreement or this Series 2019-1 Purchase Agreement is found to have been incorrect when made, or any information required thereby or hereby to be given by the Servicer is found to have been incorrect when given, and such incorrect representation, warranty or information has a material adverse effect on the ability of the Series 2019-1 Co-Owner to satisfy its obligations to holders of the Series 2019-1 Senior Notes or the Series 2019-1 Subordinated Notes and continues to be incorrect or unremedied for a period of thirty (30) Business Days after delivery by the Custodian or the Issuer Trustee of written notice thereof to the Servicer;
(c) except where the terms of Section 9.5 of the Pooling and Servicing Agreement have been complied with, there is commenced against the Servicer any proceeding or the taking of any step by or against the Servicer for the dissolution, liquidation or winding up of the Servicer or for any relief from the laws of any jurisdiction relating to bankruptcy, insolvency, reorganization, arrangement, compromise or winding up, or for the appointment of one or more of a trustee, receiver, receiver and manager, custodian, liquidator or other person with similar powers Control occurs with respect to the Servicer, unless such proceeding or step is being contested in good faith by the Servicer;; or
(dviii) the Servicer ceases fails to carry on a revolving credit card business except in maintain an active Loan Guaranty Agreement with the course of carrying out a transaction in respect of which SBA; or
(ix) the conditions of Section 9.4 or Section 9.5 Servicer fails to provide an estimate of the Pooling unrecoverable portion of any SBA Loan that is 180 days or greater past due and Servicing Agreement are observed reserve against that estimated portion of the SBA Loan consistent with the Servicer's historical recovery rate and/or the Credit and performedCollection Policy; and
Notwithstanding the foregoing, a delay in or the failure of performance referred to in Section 9.01(a)(i), (eii) or (ix) for a period of three (3) Business Days, in each case in addition to any grace period specified in such sections, shall not constitute a Servicer Termination Event if CT Bank is such delay or failure could not have been prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or public enemy, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightening, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns or floods. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a Standby timely manner in accordance with the terms of this Agreement.
(b) then, and in each and every such case, so long as a Servicer and an Independent Investment Advisor Termination Event shall not have been appointed and have agreed to act under Section 9.2remedied, the Independent Investment Advisor notifies the Series 2019-1 Co-OwnerMajority Noteholders, the Administrator and CT Bank by notice in writing that:
to the Servicer (iexcept with respect to (iii), (iv) and (v) for which no notice is required) may, in addition to whatever rights such Noteholders may have at law or equity including damages, injunctive relief and specific performance, in each case, with the consent of the SBA (which may be withheld in its reasonable opinion, there has been a material adverse change in sole discretion) terminate all the financial condition or operation of CT Bank that is reasonably likely to result in CT Bank being unable to pay its liabilities as they become due within ninety (90) days rights and obligations of the date on which Servicer under this Agreement and in and to the Independent Investment Advisor became aware SBA Loans and the proceeds thereof, as Servicer. Upon such receipt by the Servicer of such material adverse change, and
a written notice from the Majority Noteholders (iiaccompanied by the consent of the SBA) stating that they or it intend to terminate the Servicer as a result of such material adverse changeServicer Termination Event, all authority and power of the Servicer under this Agreement, whether with respect to the SBA Loans or otherwise, shall, subject to Section 9.02 and the Multi-Party Agreement, pass to and be vested in the Indenture Trustee and the Indenture Trustee is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the Independent Investment Advisor believes that it is in the best interests transfer and endorsement or assignment of the holders SBA Loans and related documents. The Servicer agrees to cooperate with the Indenture Trustee in effecting the termination of Series 2019-1 Notes that CT Bank the Servicer's responsibilities and rights hereunder, including, without limitation, the transfer to the Indenture Trustee for administration by it of all amounts which shall at the time be replaced as credited by the Servicer by to each Principal and Interest Account or thereafter received with respect to the Standby Servicer, and accordingly, SBA Loans. The Indenture Trustee shall provide written notice to the Independent Investment Advisor recommends in writing that CT Bank be so replaced as Servicer; provided, however, that no servicer termination event in respect SBA of any Servicer Termination Event of which a Responsible Officer of the Series 2019-1 Ownership Interest will be considered to have occurred if, on or before the fifth (5th) Business Day occurring after such recommendation, the holders Indenture Trustee has knowledge and any actual termination of the Series 2019-1 Notes provide the Issuer Trustee with a Noteholder Direction to the effect that such event shall not give rise to a servicer termination event for these purposesServicer hereunder.
(2) A servicer termination event in respect of the Series 2019-1 Ownership Interest may be waived by the Series 2019-1 Co-Owner.
Appears in 1 contract
Sources: Sale and Servicing Agreement (BLC Financial Services Inc)
Servicer Termination Events. (1) The occurrence of If any one or more of the following shall be events (a “servicer termination event” in relation to the Series 2019-1 Ownership InterestServicer Termination Event”) shall occur and be continuing on any date:
(a) any failure by the Servicer fails to make any distributionpayment, transfer or deposit or to give instructions or notice to the Borrower, the Deal Agent or any Lender Agent as required in respect by this Agreement, or to deliver any Required Reports hereunder on or before the date occurring two Business Days after the date such payment, transfer, deposit, instruction of notice or report is required to be made or given, as the case may be, under the terms of this Agreement;
(b) any failure on the part of the Series 2019-1 Ownership Interest and such failure continues for a period of five (5) Business Days, or the Servicer fails duly to observe or perform in any covenant material respect any other covenants or agreement contained agreements of the Servicer set forth in the Pooling and Servicing this Agreement or this Series 2019-1 Purchase Agreement, if such failure has any other Transaction Document to which it is a material adverse effect on the ability of the Series 2019-1 Co-Owner to satisfy its obligations to holders of the Series 2019-1 Senior Notes or the Series 2019-1 Subordinated Notes and party as Servicer that continues unremedied for a period of thirty 30 days after the first to occur of (30i) Business Days after delivery the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Custodian Deal Agent or the Issuer Trustee Borrower and (ii) the date on which an officer of written notice thereof to the ServicerServicer becomes aware thereof;
(bc) any representation representation, warranty or warranty certification made by the Servicer in the Pooling and Servicing this Agreement or in any certificate delivered pursuant to this Series 2019-1 Purchase Agreement is found shall prove to have been incorrect when made, or any information required thereby or hereby to be given by the Servicer is found to have been incorrect when given, and such incorrect representation, warranty or information has a material adverse effect on the ability of the Series 2019-1 Co-Owner to satisfy its obligations to holders of the Series 2019-1 Senior Notes or the Series 2019-1 Subordinated Notes and that continues to be incorrect or unremedied for a period of thirty 30 days after the first to occur of (30i) Business Days after delivery the date on which written notice of such incorrectness requiring the same to be remedied shall have been given to the Servicer by the Custodian Deal Agent or the Issuer Trustee of written notice thereof to Borrower and (ii) the Servicer;
(c) except where the terms of Section 9.5 of the Pooling and Servicing Agreement have been complied with, there is commenced against date on which the Servicer any proceeding or the taking of any step by or against the Servicer for the dissolution, liquidation or winding up of the Servicer or for any relief from the laws of any jurisdiction relating to bankruptcy, insolvency, reorganization, arrangement, compromise or winding up, or for the appointment of one or more of a trustee, receiver, receiver and manager, custodian, liquidator or other person with similar powers with respect to the Servicer, unless such proceeding or step is being contested in good faith by the Servicerbecomes aware thereof;
(d) the Servicer ceases shall fail in any material respect to carry on a revolving credit card business except service the Transferred Loans in accordance with the course of carrying out a transaction in respect of which the conditions of Section 9.4 or Section 9.5 of the Pooling Credit and Servicing Agreement are observed and performed; andCollection Policy;
(e) if CT Bank is an Insolvency Event shall occur with respect to the Servicer or any of its Affiliates;
(f) the Servicer agrees to or otherwise permits (x) any change in the Credit and Collection Policy which would materially and adversely affect or impair the collectibility of any Transferred Loan, or (y) any material change in the Credit and Collection Policy without the prior written consent of the Deal Agent and each Lender Agent;
(g) any financial or asset information reasonably requested by the Deal Agent or the other Secured Parties as provided herein is not provided as requested within five Business Days of the receipt by the Servicer of such request;
(h) the rendering against the Servicer of a Standby Servicer final judgment, decree or order for the payment of money in excess of U.S. $5,000,000 (individually or in the aggregate) and an Independent Investment Advisor have been appointed the continuance of such judgment, decree or order unsatisfied and have agreed to act under Section 9.2, the Independent Investment Advisor notifies the Series 2019-1 Co-Owner, the Administrator and CT Bank in writing that:effect for any period of 61or more consecutive days without a stay of execution;
(i) in its reasonable opinion, there has been a material adverse change in the financial condition or operation of CT Bank that is reasonably likely to result in CT Bank being unable to pay its liabilities as they become due within ninety (90) days failure of the date on which 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 Independent Investment Advisor became aware occurrence of any event or condition that would permit acceleration of such material adverse change, andrecourse debt or other obligations if such event or condition has not been waived;
(iij) 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 maintain its status as a result business development company or as a registered investment company under the 1940 Act; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been remedied at the expiration of such material adverse changeany applicable cure period, the Independent Investment Advisor believes that it is in Deal Agent, by written notice to the best interests Servicer and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.26, terminate all of the holders rights and obligations of Series 2019-1 Notes that CT Bank be replaced as the Servicer by as Servicer under this Agreement. The Borrower shall pay all reasonable set-up and conversion costs associated with the Standby Servicer, and accordingly, the Independent Investment Advisor recommends in writing that CT Bank be so replaced as Servicer; provided, however, that no servicer termination event in respect transfer of the Series 2019-1 Ownership Interest will be considered to have occurred if, on or before the fifth (5th) Business Day occurring after such recommendation, the holders of the Series 2019-1 Notes provide the Issuer Trustee with a Noteholder Direction servicing rights to the effect that such event shall not give rise to a servicer termination event for these purposesSuccessor Servicer.
(2) A servicer termination event in respect of the Series 2019-1 Ownership Interest may be waived by the Series 2019-1 Co-Owner.
Appears in 1 contract
Sources: Loan Funding and Servicing Agreement (American Capital Strategies LTD)
Servicer Termination Events. (1a) The occurrence of If any one or more of the following events ("Servicer Termination Events") shall occur and be a “servicer termination event” in relation to the Series 2019-1 Ownership Interestcontinuing:
(ai) The failure by the Servicer fails to make any distribution, transfer payment or deposit required in respect to be made by the Servicer hereunder, under the Lock-Box Agreement or any other Operative Document and the continuance of the Series 2019-1 Ownership Interest and such failure continues for a period of five two (52) Business Days, Day after the date on which such payment or deposit was due and not made; or
(ii) The failure by the Servicer fails duly to observe or perform perform, in any covenant material respect, any other covenants, obligations or agreement contained agreements of the Servicer (except those not applicable to Backup Servicer if its becomes Servicer hereunder) as set forth in the Pooling and Servicing Agreement or this Series 2019-1 Purchase Agreement, if such which failure has a material adverse effect on the ability of the Series 2019-1 Co-Owner to satisfy its obligations to holders of the Series 2019-1 Senior Notes or the Series 2019-1 Subordinated Notes and continues unremedied for a period of thirty 30 days, after the date on which notice of such failure is delivered to the Servicer or the Servicer otherwise has actual knowledge of such fact; or
(30iii) Any assignment by the Servicer of its duties or rights hereunder, under the Lock-Box Agreement, or any other Operative Document, except as specifically permitted hereunder or thereunder, or any attempt to make such an assignment; or
(iv) The entry against the Servicer or the Seller (if an Affiliate of the Servicer) of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs and the failure of such decree or order to be discharged or stayed for 60 days; or
(v) The Servicer or the Seller (if an Affiliate of the Servicer) shall voluntarily go into liquidation, consent to the appointment of a conservator or receiver or liquidator or similar person in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or the Seller or of or relating to all or substantially all of its property, or the Servicer or the Seller shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(vi) So long as the Seller is the Servicer, any failure of the Seller to repurchase any Receivable as required by Section 2.4; or
(vii) Any representation, warranty or statement of the Servicer (except those not applicable to Backup Servicer if it becomes Servicer hereunder) made in this Agreement or any certificate, report or other writing delivered pursuant hereto shall prove to be incorrect in any material respect as of the time when the same shall have been made and, within 30 days after written notice thereof shall have been given to the Servicer or the Servicer otherwise has actual knowledge thereof, the circumstances or condition in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured; or
(viii) Either of the Servicer or the Depositor shall consolidate or merge with or into any other Person other than as contemplated in Section 5.2; or
(ix) Any failure by the Servicer to deliver the reports described in Article IV of this Agreement which remains uncured for three Business Days after delivery the date on which such failure commences; provided, however that the period within which Servicer shall deliver such reports shall be extended to such longer period as is appropriate in the event of a Force Majeure Delay; provided further, that such longer period shall not exceed seven (7) Business Days; or
(x) Any default of a payment obligation under any other loan facility, debt instrument or any similar financing arrangement (such facility, instrument or financing arrangement to be an obligation of $5,000,000 or greater) of the Servicer or any "event of default", "early amortization event" or similar event under any indenture, facility or agreement to which the Servicer is a party and the lapse of all relevant grace periods thereunder if the effect of the default is to cause, or permit the holders of such obligation to cause, such loan facility, debt instrument or any similar financing arrangement to become due and payable; or
(xi) There shall have occurred any material adverse change in the operations of the Servicer since December 31, 2001, or any other event shall have occurred which materially affects the Servicer's ability to either collect the Receivables or to perform under this Agreement; or
(xii) A default or breach shall occur under any other agreement, document or instrument to which the Servicer is a party or by which the Servicer or its property is bound that is not cured within any applicable grace period therefor, and such default or breach (i) involves the failure to make any payment when due in respect of any Indebtedness of the Servicer in excess of five percent (5%) of the Servicer's Tangible Net Worth, or (ii) causes, or permits any holder of such Indebtedness or a trustee or agent to cause, Indebtedness or a portion thereof in excess of five percent (5%) of the Servicer's Tangible Net Worth to become due prior to its stated maturity or prior to its regularly scheduled dates of payment, regardless of whether such default is waived, or such right is exercised, by such holder, trustee or agent; or
(xiii) the Servicer (excluding Backup Servicer if it becomes the Servicer) ceases to own at least 100% of the Depositor; or
(xiv) Any failure by the Custodian or Servicer to meet the Issuer Trustee of written notice thereof financial covenants contained in Section 4.21; or
(xv) The Agent shall not have delivered a Servicer Extension Notice pursuant to the Servicer;Section 4.23.
(b) then, and in each and every such case, so long as a Servicer Termination Event shall not have been remedied within the applicable grace period, the Indenture Trustee shall, at the direction of the Agent on behalf of the Majority Noteholders, by notice then given in writing to the Servicer, terminate all of the rights and obligations of the Servicer as servicer under this Agreement. Any such notice to the Servicer shall also be given to the Seller, the Issuer, the Depositor and the Backup Servicer. On or after the receipt by the Servicer of such written notice, all authority and power of the Servicer under this Agreement, whether with respect to the Notes or the Receivables or otherwise, shall pass to and be vested in the Backup Servicer pursuant to and under this Section; and, without limitation, the Backup Servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any representation and all documents and other instruments, and to do or warranty made accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of each Receivable and related documents or otherwise. The Servicer agrees to cooperate with the Backup Servicer in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Backup Servicer for the administration by it of all cash amounts that shall at the time be held by the Servicer and to be deposited by it in the Note Account, or that have been deposited by the Servicer in the Pooling and Servicing Agreement Lock-Box Account or this Series 2019-1 Purchase Agreement is found to have been incorrect when made, or any information required thereby or hereby to be given thereafter received by the Servicer is found to have been incorrect when given, and such incorrect representation, warranty or information has a material adverse effect on the ability of the Series 2019-1 Co-Owner to satisfy its obligations to holders of the Series 2019-1 Senior Notes or the Series 2019-1 Subordinated Notes and continues to be incorrect or unremedied for a period of thirty (30) Business Days after delivery by the Custodian or the Issuer Trustee of written notice thereof to the Servicer;
(c) except where the terms of Section 9.5 of the Pooling and Servicing Agreement have been complied with, there is commenced against the Servicer any proceeding or the taking of any step by or against the Servicer for the dissolution, liquidation or winding up of the Servicer or for any relief from the laws of any jurisdiction relating to bankruptcy, insolvency, reorganization, arrangement, compromise or winding up, or for the appointment of one or more of a trustee, receiver, receiver and manager, custodian, liquidator or other person with similar powers with respect to the Receivables. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the Receivables Documents to the successor servicer and amending this Agreement to reflect such succession as servicer pursuant to this Section shall be paid by the Servicer (or if the Servicer is the Backup Servicer, unless such proceeding or step is being contested in good faith by the initial Servicer;
(d) the Servicer ceases to carry on a revolving credit card business except in the course upon presentation of carrying out a transaction in respect of which the conditions of Section 9.4 or Section 9.5 of the Pooling and Servicing Agreement are observed and performed; and
(e) if CT Bank is the Servicer and a Standby Servicer and an Independent Investment Advisor have been appointed and have agreed to act under Section 9.2, the Independent Investment Advisor notifies the Series 2019-1 Co-Owner, the Administrator and CT Bank in writing that:
(i) in its reasonable opinion, there has been a material adverse change in the financial condition or operation of CT Bank that is reasonably likely to result in CT Bank being unable to pay its liabilities as they become due within ninety (90) days of the date on which the Independent Investment Advisor became aware documentation of such material adverse change, and
(ii) as a result of such material adverse change, the Independent Investment Advisor believes that it is in the best interests of the holders of Series 2019-1 Notes that CT Bank be replaced as the Servicer by the Standby Servicer, costs and accordingly, the Independent Investment Advisor recommends in writing that CT Bank be so replaced as Servicer; provided, however, that no servicer termination event in respect of the Series 2019-1 Ownership Interest will be considered to have occurred if, on or before the fifth (5th) Business Day occurring after such recommendation, the holders of the Series 2019-1 Notes provide the Issuer Trustee with a Noteholder Direction to the effect that such event shall not give rise to a servicer termination event for these purposesexpenses.
(2) A servicer termination event in respect of the Series 2019-1 Ownership Interest may be waived by the Series 2019-1 Co-Owner.
Appears in 1 contract
Servicer Termination Events. (1) The occurrence of If any one or more of the following shall be events (a “servicer termination event” in relation to the Series 2019-1 Ownership InterestServicer Termination Event”) shall occur and be continuing on any date:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Borrower, the Deal Agent or any Lender Agent as required by this Agreement, or to deliver any Required Reports hereunder on or before the date occurring two Business Days after the date such payment, transfer, deposit, instruction of notice or report is required to be made or given, as the case may be, under the terms of this Agreement;
(b) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any other Transaction Document to which it is a party as Servicer that continues unremedied for a period of 30 days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Deal Agent or the Borrower and (ii) the date on which an officer of the Servicer becomes aware thereof;
(c) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made in any material respect, and that continues to be unremedied for a period of 30 days after the first to occur of (i) the date on which written notice of such incorrectness requiring the same to be remedied shall have been given to the Servicer by the Deal Agent or the Borrower and (ii) the date on which the Servicer becomes aware thereof;
(d) the Servicer shall fail in any material respect to service the Transferred Loans in accordance with the Credit and Collection Policy;
(e) an Insolvency Event shall occur with respect to the Servicer or any of its Affiliates;
(f) the Servicer agrees to or otherwise permits (x) any change in the Credit and Collection Policy which would materially and adversely affect or impair the collectibility of any Transferred Loan, or (y) any material change in the Credit and Collection Policy without the prior written consent of the Deal Agent and each Lender Agent;
(g) any financial or asset information reasonably requested by the Deal Agent or the other Secured Parties as provided herein is not provided as requested within five Business Days of the receipt by the Servicer of such request;
(i) a final judgment for the payment of money in excess of $5,000,000 shall have been rendered against the Servicer by a court of competent jurisdiction and the Servicer shall not have either (1) discharged or provided for the discharge of such judgment in accordance with its terms or (2) perfected a timely appeal of such judgment and caused the execution thereof to be stayed (by supersedes or otherwise) during the pendency of such appeal or (ii) the Servicer shall have made a payment in excess of $1,000,000 in settlement of any litigation;
(i) the Servicer fails to make any distribution, transfer payment of any principal of or deposit required any interest on any debt or other obligations when due (after giving effect to any periods of grace) which is outstanding in respect a principal amount of more than $5,000,000 in the Series 2019-1 Ownership Interest and such failure continues for a period of five (5) Business Daysaggregate, or any event or condition occurs that would permit acceleration of such debt or other obligations if such event or condition has not been waived;
(j) the Servicer fails to observe or perform maintain a minimum Net Worth of at least $1,000,000,000 plus seventy-five (75%) percent of any covenant or agreement contained in the Pooling new equity and Servicing Agreement or this Series 2019-1 Purchase AgreementSubordinated Debt issued after March 31, if such failure has a material adverse effect on the ability of the Series 2019-1 Co-Owner to satisfy its obligations to holders of the Series 2019-1 Senior Notes or the Series 2019-1 Subordinated Notes and continues unremedied for a period of thirty (30) Business Days after delivery by the Custodian or the Issuer Trustee of written notice thereof to the Servicer;2004; or
(bk) any representation or warranty made by the Servicer in the Pooling and Servicing Agreement or this Series 2019Change-1 Purchase Agreement is found to have been incorrect when made, or any information required thereby or hereby to be given by in-Control of the Servicer is found made without the prior written consent of the Borrower and the Deal Agent; or
(l) the Servicer shall fail to maintain its status as a business development company or as a registered investment company under the 1940 Act; then notwithstanding anything herein to the contrary, so long as any such Servicer Termination Events shall not have been incorrect when givenremedied at the expiration of any applicable cure period, the Deal Agent, by written notice to the Servicer and such incorrect representationthe Backup Servicer (a “Servicer Termination Notice”), warranty or information has a material adverse effect on may, subject to the ability provisions of Section 7.26, terminate all of the Series 2019-1 Co-Owner to satisfy its rights and obligations to holders of the Series 2019-1 Senior Notes or the Series 2019-1 Subordinated Notes and continues to be incorrect or unremedied for a period of thirty (30) Business Days after delivery by the Custodian or the Issuer Trustee of written notice thereof to the Servicer;
(c) except where the terms of Section 9.5 of the Pooling and Servicing Agreement have been complied with, there is commenced against the Servicer any proceeding or the taking of any step by or against the Servicer for the dissolution, liquidation or winding up of the Servicer or for any relief from as Servicer under this Agreement. The Borrower shall pay all reasonable set-up and conversion costs associated with the laws transfer of any jurisdiction relating to bankruptcy, insolvency, reorganization, arrangement, compromise or winding up, or for the appointment of one or more of a trustee, receiver, receiver and manager, custodian, liquidator or other person with similar powers with respect servicing rights to the Successor Servicer, unless such proceeding or step is being contested in good faith by the Servicer;
(d) the Servicer ceases to carry on a revolving credit card business except in the course of carrying out a transaction in respect of which the conditions of Section 9.4 or Section 9.5 of the Pooling and Servicing Agreement are observed and performed; and
(e) if CT Bank is the Servicer and a Standby Servicer and an Independent Investment Advisor have been appointed and have agreed to act under Section 9.2, the Independent Investment Advisor notifies the Series 2019-1 Co-Owner, the Administrator and CT Bank in writing that:
(i) in its reasonable opinion, there has been a material adverse change in the financial condition or operation of CT Bank that is reasonably likely to result in CT Bank being unable to pay its liabilities as they become due within ninety (90) days of the date on which the Independent Investment Advisor became aware of such material adverse change, and
(ii) as a result of such material adverse change, the Independent Investment Advisor believes that it is in the best interests of the holders of Series 2019-1 Notes that CT Bank be replaced as the Servicer by the Standby Servicer, and accordingly, the Independent Investment Advisor recommends in writing that CT Bank be so replaced as Servicer; provided, however, that no servicer termination event in respect of the Series 2019-1 Ownership Interest will be considered to have occurred if, on or before the fifth (5th) Business Day occurring after such recommendation, the holders of the Series 2019-1 Notes provide the Issuer Trustee with a Noteholder Direction to the effect that such event shall not give rise to a servicer termination event for these purposes.
(2) A servicer termination event in respect of the Series 2019-1 Ownership Interest may be waived by the Series 2019-1 Co-Owner.
Appears in 1 contract
Sources: Loan Funding and Servicing Agreement (American Capital Strategies LTD)
Servicer Termination Events. (1a) The occurrence of If any one or more of the following events ("Servicer Termination Events") shall occur and be a “servicer termination event” in relation to the Series 2019-1 Ownership Interestcontinuing:
(ai) The failure by the Servicer fails to make deposit in the Note Account any distribution, transfer or deposit required in respect to be made by it under the terms of the Series 2019-1 Ownership Interest and such failure continues for a period of five (5) Business Days, or the Servicer fails to observe or perform any covenant or agreement contained in the Pooling and Servicing this Agreement or this Series 2019-1 Purchase Agreement, if such failure has a material adverse effect on the ability of the Series 2019-1 Co-Owner to satisfy its obligations to holders of the Series 2019-1 Senior Notes or the Series 2019-1 Subordinated Notes and which continues unremedied for a period of thirty one Business Day after the date upon which such deposit is required to be made; or
(30ii) Business Days after delivery The failure by the Custodian Servicer duly to observe or perform, in any material respect, any other covenants, obligations or agreements of the Servicer as set forth in this Agreement, which failure continues unremedied for a period of 30 days, after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or to the Servicer and the Indenture Trustee by any holder of a Note evidencing an aggregate undivided interest in the Notes of a Percentage Interest of at least 25%; or
(iii) The entry against the Servicer or the Issuer Trustee Seller (if an Affiliate of written notice thereof the Servicer) of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs and the failure of such decree or order to be discharged or stayed for 60 days; or
(iv) The Servicer or the Seller (if an Affiliate of the Servicer) shall voluntarily go into liquidation, consent to the appointment of a conservator or receiver or liquidator or similar person in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or the Seller or of or relating to all or substantially all of its property, or the Servicer or the Seller shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(v) So long as the Seller is the Servicer;, any failure of the Seller to repurchase any Receivable as required by Section 2.4; or
(vi) Either of the Servicer or the Depositor shall consolidate or merge with or into any other Person other than as contemplated in Section 5.2.; or
(vii) Any default of a payment or performance obligation under any other loan facility, debt instrument or any similar financing arrangement (such facility, instrument or financing arrangement to be an obligation of $10,000,000 or greater) of the Servicer and the lapse of all relevant grace periods thereunder if the effect of the default is to cause, or permit the holders of such obligation to cause, such loan facility, debt instrument or any similar financing arrangement to become due and payable; or
(viii) At any time after September 30, 2001 OHC shall not have in full force and effect a working capital borrowing facility with a commitment termination date after the Final Addition Date and in an amount greater than or equal to $75,000,000 and in form and substance satisfactory to the Class A Note Agent or OHC shall default in the performance of its covenants (other than its covenant to pay principal and interest) under such working capital borrowing facility; or
(ix) There shall have occurred any material adverse change in the operations of the Servicer since September 30, 2000, or any other event shall have occurred which materially affects the Servicer's ability to either collect the Receivables or to perform under this Agreement; or
(x) The Indenture Trustee shall not have delivered a Servicer Extension Notice pursuant to Section 4.19.
(b) then, and in each and every such case, so long as a Servicer Termination Event shall not have been remedied within the applicable grace period, the Indenture Trustee shall, at the direction of the Majority Noteholders, by notice then given in writing to the Servicer, terminate all of the rights and obligations of the Servicer as servicer under this Agreement. Any such notice to the Servicer shall also be given to the Seller, the Issuer, the Depositor and the Backup Servicer. On or after the receipt by the Servicer of such written notice, all authority and power of the Servicer under this Agreement, whether with respect to the Notes or the Receivables or otherwise, shall pass to and be vested in the Backup Servicer pursuant to and under this Section; and, without limitation, the Backup Servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any representation and all documents and other instruments, and to do or warranty made accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of each Receivable and related documents or otherwise. The Servicer agrees to cooperate with the Backup Servicer in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Backup Servicer for the administration by it of all cash amounts that shall at the time be held by the Servicer and to be deposited by it in the Note Account, or that have been deposited by the Servicer in the Pooling and Servicing Agreement Note Account or this Series 2019-1 Purchase Agreement is found to have been incorrect when made, or any information required thereby or hereby to be given thereafter received by the Servicer is found to have been incorrect when given, and such incorrect representation, warranty or information has a material adverse effect on the ability of the Series 2019-1 Co-Owner to satisfy its obligations to holders of the Series 2019-1 Senior Notes or the Series 2019-1 Subordinated Notes and continues to be incorrect or unremedied for a period of thirty (30) Business Days after delivery by the Custodian or the Issuer Trustee of written notice thereof to the Servicer;
(c) except where the terms of Section 9.5 of the Pooling and Servicing Agreement have been complied with, there is commenced against the Servicer any proceeding or the taking of any step by or against the Servicer for the dissolution, liquidation or winding up of the Servicer or for any relief from the laws of any jurisdiction relating to bankruptcy, insolvency, reorganization, arrangement, compromise or winding up, or for the appointment of one or more of a trustee, receiver, receiver and manager, custodian, liquidator or other person with similar powers with respect to the Receivables. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the Files to the successor servicer and amending this Agreement to reflect such succession as servicer pursuant to this Section shall be paid by the Servicer (or if the Servicer is the Backup Servicer, unless such proceeding or step is being contested in good faith by the initial Servicer;
(d) the Servicer ceases to carry on a revolving credit card business except in the course upon presentation of carrying out a transaction in respect of which the conditions of Section 9.4 or Section 9.5 of the Pooling and Servicing Agreement are observed and performed; and
(e) if CT Bank is the Servicer and a Standby Servicer and an Independent Investment Advisor have been appointed and have agreed to act under Section 9.2, the Independent Investment Advisor notifies the Series 2019-1 Co-Owner, the Administrator and CT Bank in writing that:
(i) in its reasonable opinion, there has been a material adverse change in the financial condition or operation of CT Bank that is reasonably likely to result in CT Bank being unable to pay its liabilities as they become due within ninety (90) days of the date on which the Independent Investment Advisor became aware documentation of such material adverse change, and
(ii) as a result of such material adverse change, the Independent Investment Advisor believes that it is in the best interests of the holders of Series 2019-1 Notes that CT Bank be replaced as the Servicer by the Standby Servicer, costs and accordingly, the Independent Investment Advisor recommends in writing that CT Bank be so replaced as Servicer; provided, however, that no servicer termination event in respect of the Series 2019-1 Ownership Interest will be considered to have occurred if, on or before the fifth (5th) Business Day occurring after such recommendation, the holders of the Series 2019-1 Notes provide the Issuer Trustee with a Noteholder Direction to the effect that such event shall not give rise to a servicer termination event for these purposesexpenses.
(2) A servicer termination event in respect of the Series 2019-1 Ownership Interest may be waived by the Series 2019-1 Co-Owner.
Appears in 1 contract
Servicer Termination Events. (1) The occurrence of any one or more Any of the following acts or occurrences shall be constitute a “servicer termination event” in relation to the Series 2019-1 Ownership Interest"Servicer Termination Event" under this Servicing Agreement:
(a) any failure by the Servicer fails to make any distributionpayment, transfer or deposit to the Collateral Agent on the date such payment, transfer or deposit is required in respect to be made;
(b) any failure by the Servicer or Back-up Servicer to provide any notices to the Collateral Agent and the Surety Bond Provider pursuant to this Servicing Agreement relating to the transfer or calculation of funds;
(c) failure on the part of the Series 2019Servicer or Back-1 Ownership Interest and such failure continues for a period up Servicer to duly observe or perform in any material respect any other covenants or agreements of five (5) Business Daysthe Servicer or Back-up Servicer, respectively, set forth in this Servicing Agreement; or the Servicer fails or the Back-up Servicer shall assign its respective duties hereunder (except as expressly permitted herein);
(d) any representation, warranty or certification made by the Servicer or Back-up Servicer or any successor to observe or perform any covenant or agreement contained either in the Pooling and this Servicing Agreement or this Series 2019-1 Purchase Agreement, if such failure or any certificate delivered pursuant to this Servicing Agreement, shall prove to have been incorrect when made, which has a material adverse effect on the ability of the Series 2019-1 Co-Owner to satisfy its obligations to holders of the Series 2019-1 Senior Notes Noteholder or the Series 2019Surety Bond Provider;
(e) the Servicer or Back-1 Subordinated Notes up Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and continues unremedied liabilities or similar proceedings of or relating to the Servicer or Back-up Servicer, respectively, or of or relating to all or substantially all of their respective properties; or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer or Back-up Servicer or Successor Servicer or Successor Back-up Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of thirty (30) Business Days after delivery by the Custodian 60 days; or the Issuer Trustee Servicer or Back-up Servicer or any successor to either shall admit in writing its inability to pay its debts generally as they become due, file or have filed against it a petition or commence an action to take advantage of written notice thereof to any applicable insolvency or reorganization statute, make any assignment for the Servicerbenefit of its creditors or voluntarily suspend payment of its obligations;
(bf) the Servicer or the Back-up Servicer or any representation or warranty made successor to either shall fail to be an Eligible Servicer as determined by the Servicer in the Pooling and Servicing Agreement or this Series 2019-1 Purchase Agreement is found to have been incorrect when made, or any information required thereby or hereby to be given by the Servicer is found to have been incorrect when given, and such incorrect representation, warranty or information has a material adverse effect on the ability of the Series 2019-1 Co-Owner to satisfy its obligations to holders of the Series 2019-1 Senior Notes or the Series 2019-1 Subordinated Notes and continues to be incorrect or unremedied for a period of thirty (30) Business Days after delivery by the Custodian or the Issuer Trustee of written notice thereof to the ServicerSurety Bond Provider;
(cg) except where the terms of Section 9.5 of the Pooling and Servicing Agreement have been complied with, there is commenced against the Servicer makes any proceeding or the taking of any step by or against the Servicer for the dissolution, liquidation or winding up of the Servicer or for any relief from the laws of any jurisdiction relating material changes to bankruptcy, insolvency, reorganization, arrangement, compromise or winding up, or for the appointment of one or more of a trustee, receiver, receiver and manager, custodian, liquidator or other person with similar powers its Collection Policy with respect to the ServicerReceivables without the consent of the Surety Bond Provider, unless such proceeding or step is being contested in good faith by the Servicer;which consent shall not be unreasonably withheld; or
(dh) the Servicer ceases to carry on a revolving credit card business except Termination Event (as defined in the course of carrying out a transaction in respect of Security Agreement) occurs which the conditions of Section 9.4 or Section 9.5 of the Pooling and Servicing Agreement are observed and performed; and
(e) if CT Bank is the Servicer and a Standby Servicer and an Independent Investment Advisor have has not been appointed and have agreed to act under Section 9.2, the Independent Investment Advisor notifies the Series 2019-1 Co-Owner, the Administrator and CT Bank in writing that:
(i) in its reasonable opinion, there has been a material adverse change in the financial condition or operation of CT Bank that is reasonably likely to result in CT Bank being unable to pay its liabilities as they become due within ninety (90) days of the date on which the Independent Investment Advisor became aware of such material adverse change, and
(ii) as a result of such material adverse change, the Independent Investment Advisor believes that it is in the best interests of the holders of Series 2019-1 Notes that CT Bank be replaced as the Servicer by the Standby Servicer, and accordingly, the Independent Investment Advisor recommends in writing that CT Bank be so replaced as Servicer; provided, however, that no servicer termination event in respect of the Series 2019-1 Ownership Interest will be considered to have occurred if, on or before the fifth (5th) Business Day occurring after such recommendation, the holders of the Series 2019-1 Notes provide the Issuer Trustee with a Noteholder Direction to the effect that such event shall not give rise to a servicer termination event for these purposes.
(2) A servicer termination event in respect of the Series 2019-1 Ownership Interest may be waived by the Series 2019-1 Co-OwnerSurety Bond Provider or, if a Surety Default has occurred and is continuing, the Noteholder.
Appears in 1 contract
Sources: Servicing Agreement (First Investors Financial Services Group Inc)
Servicer Termination Events. (1) The occurrence of any one or more of the following shall be a “servicer termination event” in relation to the Series 20192023-1 Ownership Interest:
(a) the Servicer fails to make any distribution, transfer or deposit required in respect of the Series 20192023-1 Ownership Interest and such failure continues for a period of five (5) Business Days, or the Servicer fails to observe or perform any covenant or agreement contained in the Pooling and Servicing Agreement or this Series 20192023-1 Purchase Agreement, if such failure has a material adverse effect on the ability of the Series 20192023-1 Co-Owner to satisfy its obligations to holders of the Series 20192023-1 Senior Notes or the Series 20192023-1 Subordinated Notes and continues unremedied for a period of thirty (30) Business Days after delivery by the Custodian or the Issuer Trustee of written notice thereof to the Servicer;
(b) any representation or warranty made by the Servicer in the Pooling and Servicing Agreement or this Series 20192023-1 Purchase Agreement is found to have been incorrect when made, or any information required thereby or hereby to be given by the Servicer is found to have been incorrect when given, and such incorrect representation, warranty or information has a material adverse effect on the ability of the Series 20192023-1 Co-Owner to satisfy its obligations to holders of the Series 20192023-1 Senior Notes or the Series 20192023-1 Subordinated Notes and continues to be incorrect or unremedied for a period of thirty (30) Business Days after delivery by the Custodian or the Issuer Trustee of written notice thereof to the Servicer;
(c) except where the terms of Section 9.5 of the Pooling and Servicing Agreement have been complied with, there is commenced against the Servicer any proceeding or the taking of any step by or against the Servicer for the dissolution, liquidation or winding up of the Servicer or for any relief from the laws of any jurisdiction relating to bankruptcy, insolvency, reorganization, arrangement, compromise or winding up, or for the appointment of one or more of a trustee, receiver, receiver and manager, custodian, liquidator or other person with similar powers with respect to the Servicer, unless such proceeding or step is being contested in good faith by the Servicer;
(d) the Servicer ceases to carry on a revolving credit card business except in the course of carrying out a transaction in respect of which the conditions of Section 9.4 or Section 9.5 of the Pooling and Servicing Agreement are observed and performed; and
(e) if CT Bank is the Servicer and a Standby Servicer and an Independent Investment Advisor have been appointed and have agreed to act under Section 9.2, the Independent Investment Advisor notifies the Series 20192023-1 Co-Owner, the Administrator and CT Bank in writing that:
(i) in its reasonable opinion, there has been a material adverse change in the financial condition or operation of CT Bank that is reasonably likely to result in CT Bank being unable to pay its liabilities as they become due within ninety (90) days of the date on which the Independent Investment Advisor became aware of such material adverse change, and
(ii) as a result of such material adverse change, the Independent Investment Advisor believes that it is in the best interests of the holders of Series 20192023-1 Notes that CT Bank be replaced as the Servicer by the Standby Servicer, and accordingly, the Independent Investment Advisor recommends in writing that CT Bank be so replaced as Servicer; provided, however, that no servicer termination event in respect of the Series 20192023-1 Ownership Interest will be considered to have occurred if, on or before the fifth (5th) Business Day occurring after such recommendation, the holders of the Series 20192023-1 Notes provide the Issuer Trustee with a Noteholder Direction to the effect that such event shall not give rise to a servicer termination event for these purposes.
(2) A servicer termination event in respect of the Series 20192023-1 Ownership Interest may be waived by the Series 20192023-1 Co-Owner.
Appears in 1 contract
Sources: Series Purchase Agreement
Servicer Termination Events. (1) The occurrence of If any one or more of the following events ("Servicer Termination Events") shall occur and be a “servicer termination event” in relation to the Series 2019-1 Ownership Interestcontinuing:
(a) Any failure by the Servicer fails to make deposit in the Collection Account any distribution, transfer or deposit required in respect to be made under the terms of the Series 2019-1 Ownership Interest and such failure this Agreement which continues unremedied for a period of five (5) Business DaysDays after the date upon which written notice of such failure shall have been given to the Servicer by the Indenture Trustee or the Seller, or to the Servicer, the Seller and the Indenture Trustee by the Majority Noteholders; or
(b) Any failure on the part of the Servicer fails duly to observe or perform in any covenant material respect any other covenants or agreement contained agreements of the Servicer set forth in the Pooling and Servicing Agreement Notes or in this Series 2019-1 Purchase Agreement, if such which failure has a material adverse effect on (A) materially and adversely affects the ability interests of the Series 2019-1 Co-Owner to satisfy its obligations to holders of the Series 2019-1 Senior Notes or the Series 2019-1 Subordinated Notes Noteholders and (B) continues unremedied for a period of thirty sixty (3060) Business Days days after delivery the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Custodian Indenture Trustee or the Issuer Trustee of written notice thereof Seller, or to the Servicer;, the Seller and the Indenture Trustee by the Majority Noteholders; or
(bc) any representation or warranty made by The entry against the Servicer of a decree or order by a court or agency or supervisory authority having jurisdiction in the Pooling premises for the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and Servicing Agreement liabilities or this Series 2019-1 Purchase Agreement is found to have been incorrect when madesimilar proceedings, or any information required thereby for the winding up or hereby to be given by the Servicer is found to have been incorrect when givenliquidation of its affairs, and the continuance of any such incorrect representation, warranty decree or information has a material adverse order unstayed and in effect on the ability of the Series 2019-1 Co-Owner to satisfy its obligations to holders of the Series 2019-1 Senior Notes or the Series 2019-1 Subordinated Notes and continues to be incorrect or unremedied for a period of thirty 60 consecutive days; or
(30d) Business Days after delivery The consent by the Custodian or the Issuer Trustee of written notice thereof Servicer to the Servicer;
(c) except where the terms of Section 9.5 of the Pooling and Servicing Agreement have been complied with, there is commenced against the Servicer any proceeding or the taking of any step by or against the Servicer for the dissolution, liquidation or winding up of the Servicer or for any relief from the laws of any jurisdiction relating to bankruptcy, insolvency, reorganization, arrangement, compromise or winding up, or for the appointment of one or more of a trustee, receiverconservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and managerliabilities or similar proceedings of or relating to the Servicer or of or relating to substantially all of its property; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, custodianfile a petition to take advantage of any applicable insolvency or reorganization statute, liquidator make an assignment for the benefit of its creditors, or other person with similar powers voluntarily suspend payment of its obligations; then, and in each and every case, so long as a Servicer Termination Event shall not have been remedied by the Servicer, either the Indenture Trustee or the Seller may, and at the direction of the Majority Noteholders, the Indenture Trustee shall, by notice then given in writing to the Servicer, the Seller and the Indenture Trustee, as applicable, terminate all of the rights and obligations of the Servicer as servicer under this Agreement; PROVIDED, HOWEVER, that the responsibilities and duties of the initial Servicer with respect to the purchase of Mortgage Loans pursuant to Sections 2.02, 2.04(c) and 3.01 shall not terminate. Any such notice to the Servicer shall also be given to each Rating Agency. On or after the receipt by the Servicer of such written notice, all authority and power of, and all benefits accruing to, the Servicer under this Agreement, whether with respect to the Notes or the Mortgage Loans or otherwise, shall pass to and be vested in the Indenture Trustee or, if a successor Servicer has been appointed under Section 7.02, such successor Servicer pursuant to and under this Section 7.01; and, without limitation, the Indenture Trustee is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, unless as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such proceeding notice of termination, whether to complete the transfer and endorsement of each Mortgage Loan and related documents, or step is being contested otherwise. The Servicer agrees to cooperate with the Indenture Trustee in good faith effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Indenture Trustee for the administration by it of all cash amounts that shall at the time be held by the terminated Servicer and to be deposited by it in the Collection Account, or that have been deposited by the terminated Servicer in the Collection Account or thereafter received by the terminated Servicer with respect to the Mortgage Loans, and the recordation of Assignments of Mortgages to the Owner Trustee if MERS is not the mortgagee of a Mortgage Loan or otherwise in accordance with Section 7.02(c). The Indenture Trustee or other successor servicer shall not be responsible for delays attributable to the Servicer;
(d) 's failure to deliver information, defects in the information provided by the Servicer ceases to carry on a revolving credit card business except in or other circumstances beyond the course of carrying out a transaction in respect of which the conditions of Section 9.4 or Section 9.5 control of the Pooling and Servicing Agreement are observed and performed; and
Indenture Trustee or other successor servicer. Notwithstanding the foregoing, a delay in or failure of performance under Section 7.01(a) for a period of five (e5) Business Days or under Section 7.01(b) for a period of sixty (60) days, shall not constitute a Servicer Termination Event if CT Bank is such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God, acts of declared or undeclared war, public disorder, terrorism, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a Standby timely manner in accordance with the terms of this Agreement, and the Servicer and an Independent Investment Advisor have been appointed and have agreed to act under Section 9.2shall provide the Indenture Trustee, the Independent Investment Advisor notifies Seller and the Series 2019-1 Co-OwnerNoteholders with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts to so perform its obligations. The Servicer shall immediately notify the Administrator Indenture Trustee and CT Bank each Rating Agency in writing that:
(i) in its reasonable opinion, there has been a material adverse change in the financial condition or operation of CT Bank that is reasonably likely to result in CT Bank being unable to pay its liabilities as they become due within ninety (90) days of the date on which the Independent Investment Advisor became aware of such material adverse change, and
(ii) as a result of such material adverse change, the Independent Investment Advisor believes that it is in the best interests of the holders of Series 2019-1 Notes that CT Bank be replaced as the any Servicer by the Standby Servicer, and accordingly, the Independent Investment Advisor recommends in writing that CT Bank be so replaced as Servicer; provided, however, that no servicer termination event in respect of the Series 2019-1 Ownership Interest will be considered to have occurred if, on or before the fifth (5th) Business Day occurring after such recommendation, the holders of the Series 2019-1 Notes provide the Issuer Trustee with a Noteholder Direction to the effect that such event shall not give rise to a servicer termination event for these purposesTermination Events.
(2) A servicer termination event in respect of the Series 2019-1 Ownership Interest may be waived by the Series 2019-1 Co-Owner.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Compass Asset Acceptance Co)
Servicer Termination Events. Subject to the prior written consent of the Security Trustee, the Issuer may, by notice in writing to the Servicer (1) The occurrence of with a copy to the Security Trustee and the Back-Up Servicer Facilitator), terminate the Servicer's appointment under this Agreement if any one or more of the following shall be events (each a “servicer termination event” in relation to the Series 2019-1 Ownership InterestServicer Termination Event) occurs and is continuing:
(a) the Servicer fails to make defaults in the payment on the due date of any distribution, transfer or deposit required in respect of the Series 2019-1 Ownership Interest payment due and payable by it under this Agreement and such failure continues for a period of five (5) Business Days, or the Servicer fails to observe or perform any covenant or agreement contained in the Pooling and Servicing Agreement or this Series 2019-1 Purchase Agreement, if such failure has a material adverse effect on the ability of the Series 2019-1 Co-Owner to satisfy its obligations to holders of the Series 2019-1 Senior Notes or the Series 2019-1 Subordinated Notes and default continues unremedied for a period of thirty (30) 35 Business Days after delivery after:
(i) where the failure to pay has arisen other than as a result of a Disruption Event, upon the earlier of the Servicer becoming aware of such default and the receipt by the Custodian or the Issuer Trustee Servicer of written notice thereof from the Issuer or (after the delivery of an Enforcement Notice) the Security Trustee, as the case may be, (with a copy to the ServicerBack-Up Servicer Facilitator) requiring the same to be remedied; or
(ii) where the failure to pay has arisen as a result of a Disruption Event, the cessation of the Disruption Event or, if earlier, 60 Business Days following the Servicer becoming aware of such default and receipt by the Servicer of written notice from the Issuer or (after the delivery of an Enforcement Notice) the Security Trustee, as the case may be, (with a copy to the Back-Up Servicer Facilitator) requiring the same to be remedied;
(b) the Servicer defaults in the performance or observance of any representation of its other covenants and obligations under this Agreement, which failure in the reasonable opinion of the Issuer (prior to the delivery of an Enforcement Notice) or warranty made the opinion of the Security Trustee (after the delivery of an Enforcement Notice) is materially prejudicial to the interests of the Noteholders, and the Servicer does not remedy that failure within 35 Business Days after the earlier of the Servicer becoming aware of the failure or of receipt by the Servicer in the Pooling and Servicing Agreement or this Series 2019-1 Purchase Agreement is found to have been incorrect when made, or any information required thereby or hereby to be given by the Servicer is found to have been incorrect when given, and such incorrect representation, warranty or information has a material adverse effect on the ability of the Series 2019-1 Co-Owner to satisfy its obligations to holders of the Series 2019-1 Senior Notes or the Series 2019-1 Subordinated Notes and continues to be incorrect or unremedied for a period of thirty (30) Business Days after delivery by the Custodian or the Issuer Trustee of written notice thereof from the Issuer or (after the delivery of an Enforcement Notice) the Security Trustee, as the case may be, (with a copy to the Back-Up Servicer Facilitator) requiring the Servicer's non-compliance to be remedied;
(c) except where the terms of Section 9.5 of the Pooling and Servicing Agreement have been complied with, there is commenced against the Servicer any proceeding or the taking of any step by or against the Servicer for the dissolution, liquidation or winding up of the Servicer or for any relief from the laws of any jurisdiction relating to bankruptcy, insolvency, reorganization, arrangement, compromise or winding up, or for the appointment of one or more of a trustee, receiver, receiver and manager, custodian, liquidator or other person with similar powers with respect an Insolvency Event occurs in relation to the Servicer, unless such proceeding or step is being contested in good faith by the Servicer;; or
(d) it becomes unlawful in any applicable jurisdiction for the Servicer ceases to carry on perform any of its obligations as contemplated by this Agreement provided that this does not result or arise from compliance by the Servicer with any instruction from the Issuer or the Security Trustee, then the Issuer (subject to the prior written consent of the Security Trustee) may at once or at any time thereafter while such default continues by notice in writing to the Servicer (with a revolving credit card business except copy to the Security Trustee and the Back-Up Servicer Facilitator) terminate its appointment as Servicer under this Agreement with effect from a date (not earlier than the date of the notice) specified in the course notice. In determining whether to provide or withhold consent to the termination of carrying out a transaction in respect of which the conditions of Section 9.4 or Section 9.5 of the Pooling and Servicing Agreement are observed and performed; and
(e) if CT Bank is the Servicer and a Standby Servicer and an Independent Investment Advisor have been appointed and have agreed to act under Section 9.2, the Independent Investment Advisor notifies the Series 2019-1 Co-Owner, the Administrator and CT Bank in writing that:
(i) in its reasonable opinion, there has been a material adverse change in the financial condition or operation of CT Bank that is reasonably likely to result in CT Bank being unable to pay its liabilities as they become due within ninety (90) days of the date on which the Independent Investment Advisor became aware of such material adverse change, and
(ii) as a result of such material adverse change, the Independent Investment Advisor believes that it is in the best interests of the holders of Series 2019-1 Notes that CT Bank be replaced as the Servicer by the Standby Servicer, and accordinglyIssuer, the Independent Investment Advisor recommends Security Trustee shall have regard to factors it deems to be relevant (including for this purpose, the availability of a substitute servicer and the effect (including any potential regulatory implications) on the Issuer of not having a servicer in writing that CT Bank be so replaced as Servicer; provided, however, that no servicer place at any time). Upon the termination event in respect of the Series 2019-1 Ownership Interest will be considered to have occurred if, on or before the fifth (5th) Business Day occurring after such recommendationServicer as servicer under this Agreement, the holders of Issuer shall use its reasonable endeavours to appoint a substitute servicer that satisfies the Series 2019-1 Notes provide the Issuer Trustee with a Noteholder Direction to the effect that such event shall not give rise to a servicer termination event for these purposesconditions set forth in Clause 21.2 (Voluntary Resignation).
(2) A servicer termination event in respect of the Series 2019-1 Ownership Interest may be waived by the Series 2019-1 Co-Owner.
Appears in 1 contract
Sources: Servicing Agreement
Servicer Termination Events. (1a) The occurrence of If any one or more of the following events ("Servicer Termination Events") shall occur and be a “servicer termination event” in relation to the Series 2019-1 Ownership Interestcontinuing:
(ai) The failure by the Servicer fails to make any distribution, transfer payment or deposit required in respect to be made by the Servicer hereunder, under the Lock-Box Agreement or any other Operative Document and the continuance of the Series 2019-1 Ownership Interest and such failure continues for a period of five two (52) Business Days, Day after the date on which such payment or deposit was due and not made; or
(ii) The failure by the Servicer fails duly to observe or perform perform, in any covenant material respect, any other covenants, obligations or agreement contained agreements of the Servicer (except those not applicable to Backup Servicer if its becomes Servicer hereunder) as set forth in the Pooling and Servicing Agreement or this Series 2019-1 Purchase Agreement, if such which failure has a material adverse effect on the ability of the Series 2019-1 Co-Owner to satisfy its obligations to holders of the Series 2019-1 Senior Notes or the Series 2019-1 Subordinated Notes and continues unremedied for a period of thirty (30) Business Days 30 days, after delivery by the Custodian date on which notice of such failure is delivered to the Servicer or the Issuer Trustee Servicer otherwise has actual knowledge of written notice thereof to the Servicer;such fact; or
(biii) any representation or warranty made Any assignment by the Servicer in of its duties or rights hereunder, under the Pooling and Servicing Agreement or this Series 2019Lock-1 Purchase Agreement is found to have been incorrect when madeBox Agreement, or any information required thereby other Operative Document, except as specifically permitted hereunder or hereby thereunder, or any attempt to make such an assignment; or
(iv) The entry against the Servicer or the Seller (if an Affiliate of the Servicer) of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs and the failure of such decree or order to be given by discharged or stayed for 60 days; or
(v) The Servicer or the Seller (if an Affiliate of the Servicer) shall voluntarily go into liquidation, consent to the appointment of a conservator or receiver or liquidator or similar person in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or the Seller or of or relating to all or substantially all of its property, or the Servicer or the Seller shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(vi) So long as the Seller is found the Servicer, any failure of the Seller to have been incorrect when given, and such incorrect repurchase any Receivable as required by Section 2.4; or
(vii) Any representation, warranty or information has a material adverse effect on the ability statement of the Series 2019-1 Co-Owner Servicer (except those not applicable to satisfy Backup Servicer if its obligations to holders of the Series 2019-1 Senior Notes becomes Servicer hereunder) made in this Agreement or the Series 2019-1 Subordinated Notes and continues any certificate, report or other writing delivered pursuant hereto shall prove to be incorrect or unremedied for a period in any material respect as of thirty (30) Business Days the time when the same shall have been made and, within 30 days after delivery by the Custodian or the Issuer Trustee of written notice thereof to the Servicer;
(c) except where the terms of Section 9.5 of the Pooling and Servicing Agreement shall have been complied with, there is commenced against the Servicer any proceeding or the taking of any step by or against the Servicer for the dissolution, liquidation or winding up of given to the Servicer or for any relief from the laws of any jurisdiction relating to bankruptcy, insolvency, reorganization, arrangement, compromise or winding up, or for the appointment of one or more of a trustee, receiver, receiver and manager, custodian, liquidator or other person with similar powers with respect to the Servicer, unless such proceeding or step is being contested in good faith by the Servicer;
(d) the Servicer ceases to carry on a revolving credit card business except in otherwise has actual knowledge thereof, the course of carrying out a transaction circumstances or condition in respect of which the conditions of Section 9.4 such representation, warranty or Section 9.5 of the Pooling and Servicing Agreement are observed and performed; and
(e) if CT Bank is the Servicer and a Standby Servicer and an Independent Investment Advisor statement was incorrect shall not have been appointed and have agreed to act under Section 9.2, the Independent Investment Advisor notifies the Series 2019-1 Co-Owner, the Administrator and CT Bank in writing that:
(i) in its reasonable opinion, there has been a material adverse change in the financial condition eliminated or operation of CT Bank that is reasonably likely to result in CT Bank being unable to pay its liabilities as they become due within ninety (90) days of the date on which the Independent Investment Advisor became aware of such material adverse change, and
(ii) as a result of such material adverse change, the Independent Investment Advisor believes that it is in the best interests of the holders of Series 2019-1 Notes that CT Bank be replaced as the Servicer by the Standby Servicer, and accordingly, the Independent Investment Advisor recommends in writing that CT Bank be so replaced as Servicerotherwise cured; provided, however, that no servicer termination event in respect of the Series 2019-1 Ownership Interest will be considered to have occurred if, on or before the fifth (5th) Business Day occurring after such recommendation, the holders of the Series 2019-1 Notes provide the Issuer Trustee with a Noteholder Direction to the effect that such event shall not give rise to a servicer termination event for these purposes.
(2) A servicer termination event in respect of the Series 2019-1 Ownership Interest may be waived by the Series 2019-1 Co-Owner.or
Appears in 1 contract
Servicer Termination Events. (1a) The occurrence of If any one or more of the following events ("Servicer Termination Events") shall occur and be a “servicer termination event” in relation to the Series 2019-1 Ownership Interestcontinuing:
(ai) The failure by the Servicer fails to make deposit in the Note Account any distribution, transfer or deposit required in respect to be made by it under the terms of the Series 2019-1 Ownership Interest and such failure continues for a period of five (5) Business Days, or the Servicer fails to observe or perform any covenant or agreement contained in the Pooling and Servicing this Agreement or this Series 2019-1 Purchase Agreement, if such failure has a material adverse effect on the ability of the Series 2019-1 Co-Owner to satisfy its obligations to holders of the Series 2019-1 Senior Notes or the Series 2019-1 Subordinated Notes and which continues unremedied for a period of thirty one Business Day after the date upon which such deposit is required to be made; or
(30ii) Business Days after delivery The failure by the Custodian Servicer or, prior to the termination of the OAC Subservicing Agreement, OAC, duly to observe or perform, in any material respect, any other covenants, obligations or agreements of the Servicer as set forth in this Agreement or the Issuer Trustee OAC, as Subservicer, pursuant to the OAC Subservicing Agreement, as applicable, which failure continues unremedied for a period of 30 days, after the date on which written notice thereof of such failure, requiring the same to be remedied, shall have been given to the Servicer or OAC, as Subservicer, as applicable, by the Indenture Trustee or to the Servicer or OAC, as Subservicer, as applicable, and the Indenture Trustee by any holder of a Note evidencing an aggregate undivided interest in the Notes of a Percentage Interest of at least 25%; or
(iii) The entry against the Servicer;, the Seller (if an Affiliate of the Servicer) or, prior to the termination of the OAC Subservicing Agreement, OAC, of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs and the failure of such decree or order to be discharged or stayed for 60 days; or
(iv) The Servicer, the Seller (if an Affiliate of the Servicer) or, prior to the termination of the OAC Subservicing Agreement, OAC, shall, after November 15, 2002, voluntarily go into liquidation, consent to the appointment of a conservator or receiver or liquidator or similar person in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or the Seller or of or relating to all or substantially all of its property, or the Servicer or the Seller shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(v) So long as the Seller is the Servicer or an Affiliate of the Servicer, any failure of the Seller to repurchase any Receivable as required by Section 2.4; or
(vi) Any of the Servicer, prior to the termination of the OAC Subservicing Agreement, OAC, or the Depositor shall consolidate or merge with or into any other Person; or
(vii) Any default, after the Closing Date, of a payment or performance obligation under any other loan facility, debt instrument or any similar financing arrangement (such facility, instrument or financing arrangement to be an obligation of $10,000,000 or greater) of the Servicer or, prior to the termination of the OAC Subservicing Agreement, OAC, and the lapse of all relevant grace periods thereunder if the effect of the default is to cause, or permit the holders of such obligation to cause, such loan facility, debt instrument or any similar financing arrangement to become due and payable; or
(viii) [Intentionally deleted]; or
(ix) There shall have occurred any material adverse change in the operations of the Servicer since the Closing Date, or any other event shall have occurred which materially affects the Servicer's ability to either collect the Receivables or to perform under this Agreement; or
(x) An Event of Default shall have occurred and be continuing under the Indenture.
(b) then, and in each and every such case, so long as a Servicer Termination Event shall not have been remedied within the applicable grace period, the Indenture Trustee shall, at the direction of the Majority Noteholders, by notice then given in writing to the Servicer, terminate all of the rights and obligations of the Servicer as servicer under this Agreement. Any such notice to the Servicer shall also be given to the Seller, the Issuer, the Depositor and the Backup Servicer. On or after the receipt by the Servicer of such written notice, all authority and power of the Servicer under this Agreement, whether with respect to the Notes or the Receivables or otherwise, shall pass to and be vested in the Backup Servicer pursuant to and under this Section; and, without limitation, the Backup Servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any representation and all documents and other instruments, and to do or warranty made accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of each Receivable and related documents or otherwise. The Servicer agrees to cooperate with the Backup Servicer in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Backup Servicer for the administration by it of all cash amounts that shall at the time be held by the Servicer and to be deposited by it in the Note Account, or that have been deposited by the Servicer in the Pooling and Servicing Agreement Note Account or this Series 2019-1 Purchase Agreement is found to have been incorrect when made, or any information required thereby or hereby to be given thereafter received by the Servicer is found to have been incorrect when given, and such incorrect representation, warranty or information has a material adverse effect on the ability of the Series 2019-1 Co-Owner to satisfy its obligations to holders of the Series 2019-1 Senior Notes or the Series 2019-1 Subordinated Notes and continues to be incorrect or unremedied for a period of thirty (30) Business Days after delivery by the Custodian or the Issuer Trustee of written notice thereof to the Servicer;
(c) except where the terms of Section 9.5 of the Pooling and Servicing Agreement have been complied with, there is commenced against the Servicer any proceeding or the taking of any step by or against the Servicer for the dissolution, liquidation or winding up of the Servicer or for any relief from the laws of any jurisdiction relating to bankruptcy, insolvency, reorganization, arrangement, compromise or winding up, or for the appointment of one or more of a trustee, receiver, receiver and manager, custodian, liquidator or other person with similar powers with respect to the Receivables. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the Files to the successor servicer and amending this Agreement to reflect such succession as servicer pursuant to this Section shall be paid by the Servicer (or if the Servicer is the Backup Servicer, unless such proceeding or step is being contested in good faith by the initial Servicer;
(d) the Servicer ceases to carry on a revolving credit card business except in the course upon presentation of carrying out a transaction in respect of which the conditions of Section 9.4 or Section 9.5 of the Pooling and Servicing Agreement are observed and performed; and
(e) if CT Bank is the Servicer and a Standby Servicer and an Independent Investment Advisor have been appointed and have agreed to act under Section 9.2, the Independent Investment Advisor notifies the Series 2019-1 Co-Owner, the Administrator and CT Bank in writing that:
(i) in its reasonable opinion, there has been a material adverse change in the financial condition or operation of CT Bank that is reasonably likely to result in CT Bank being unable to pay its liabilities as they become due within ninety (90) days of the date on which the Independent Investment Advisor became aware documentation of such material adverse change, and
(ii) as a result of such material adverse change, the Independent Investment Advisor believes that it is in the best interests of the holders of Series 2019-1 Notes that CT Bank be replaced as the Servicer by the Standby Servicer, costs and accordingly, the Independent Investment Advisor recommends in writing that CT Bank be so replaced as Servicer; provided, however, that no servicer termination event in respect of the Series 2019-1 Ownership Interest will be considered to have occurred if, on or before the fifth (5th) Business Day occurring after such recommendation, the holders of the Series 2019-1 Notes provide the Issuer Trustee with a Noteholder Direction to the effect that such event shall not give rise to a servicer termination event for these purposesexpenses.
(2) A servicer termination event in respect of the Series 2019-1 Ownership Interest may be waived by the Series 2019-1 Co-Owner.
Appears in 1 contract
Servicer Termination Events. (1) The occurrence of If any one or more of the following shall be events (a “servicer termination event” in relation to the Series 2019-1 Ownership InterestServicer Termination Event”) shall occur and be continuing on any date:
(a) any failure by the Servicer fails to make any distributionpayment, transfer or deposit or to give instructions or notice to the Borrower and the Deal Agent as required in respect by this Agreement, or to deliver any Required Reports hereunder on or before the date occurring two (2) Business Days after the date such payment, transfer, deposit, instruction of notice or report is required to be made or given, as the case may be, under the terms of this Agreement;
(b) any failure on the part of the Series 2019-1 Ownership Interest and such failure continues for a period of five (5) Business Days, or the Servicer fails duly to observe or perform in any covenant material respect any other covenants or agreement contained agreements of the Servicer set forth in the Pooling and Servicing this Agreement or this Series 2019-1 Purchase Agreement, if such failure has any other Transaction Document to which it is a material adverse effect on the ability of the Series 2019-1 Co-Owner to satisfy its obligations to holders of the Series 2019-1 Senior Notes or the Series 2019-1 Subordinated Notes and party as Servicer that continues unremedied for a period of thirty (30) Business Days days after delivery 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 Custodian Deal Agent or the Issuer Trustee of written notice thereof to Borrower and (ii) the Servicerdate on which the Servicer becomes aware thereof;
(bc) any representation representation, warranty or warranty certification made by the Servicer in the Pooling and Servicing this Agreement or in any certificate delivered pursuant to this Series 2019-1 Purchase Agreement is found shall prove to have been incorrect when made, or any information required thereby or hereby to be given by the Servicer is found to have been incorrect when given, and such incorrect representation, warranty or information has a material adverse effect on the ability of the Series 2019-1 Co-Owner to satisfy its obligations to holders of the Series 2019-1 Senior Notes or the Series 2019-1 Subordinated Notes and that continues to be incorrect or unremedied for a period of thirty (30) Business Days days after delivery 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 Custodian Deal Agent or the Issuer Trustee of written notice thereof to Borrower and (ii) the Servicer;
(c) except where the terms of Section 9.5 of the Pooling and Servicing Agreement have been complied with, there is commenced against date on which the Servicer any proceeding or the taking of any step by or against the Servicer for the dissolution, liquidation or winding up of the Servicer or for any relief from the laws of any jurisdiction relating to bankruptcy, insolvency, reorganization, arrangement, compromise or winding up, or for the appointment of one or more of a trustee, receiver, receiver and manager, custodian, liquidator or other person with similar powers with respect to the Servicer, unless such proceeding or step is being contested in good faith by the Servicerbecomes aware thereof;
(d) the Servicer ceases shall fail in any material respect to carry on a revolving credit card business except service the Loans in accordance with the course of carrying out a transaction in respect of which the conditions of Section 9.4 or Section 9.5 of the Pooling Credit and Servicing Agreement are observed and performed; andCollection Policy;
(e) if CT Bank is an Insolvency Event shall occur with respect to the Servicer or any of its Affiliates;
(f) the Servicer agrees to materially alter the Credit and Collection Policy without the prior written consent of the Deal Agent;
(g) any financial or asset information reasonably requested by the Deal Agent or the Secured Parties as provided herein is not provided as requested within five (5) Business Days of the receipt by the Servicer of such request;
(h) the rendering against the Servicer of a Standby Servicer final judgment, decree or order for the payment of money in excess of U.S. $5,000,000 (individually or in the aggregate) and an Independent Investment Advisor have been appointed the continuance of such judgment, decree or order unsatisfied and have agreed to act under Section 9.2, the Independent Investment Advisor notifies the Series 2019in effect for any period of sixty-1 Co-Owner, the Administrator and CT Bank in writing that:one (61) or more consecutive days without a stay of execution;
(i) in its reasonable opinion, there has been a material adverse change in the financial condition or operation of CT Bank that is reasonably likely to result in CT Bank being unable to pay its liabilities as they become due within ninety (90) days failure of the date on which 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 Independent Investment Advisor became aware occurrence of any event or condition that would permit acceleration of such material adverse change, andrecourse debt or other obligations if such event or condition has not been waived;
(iij) the Servicer fails to maintain a minimum Net Worth of at least $500,000,000 plus seventy-five (75%) percent of any new equity and Subordinated Debt issued after September 30, 2002; or
(k) any Change-in-Control of the Servicer is made without the prior written consent of the Borrower and the Deal Agent; then notwithstanding anything herein to the contrary, so long as a result any such Servicer Termination Events shall not have been remedied at the expiration of such material adverse changeany applicable cure period, the Independent Investment Advisor believes that it is in Deal Agent, by written notice to the best interests Servicer and the Backup Servicer (a “Servicer Termination Notice”), may, subject to the provisions of Section 7.26, terminate all of the holders rights and obligations of Series 2019-1 Notes that CT Bank be replaced as the Servicer by as Servicer under this Agreement. The Borrower shall pay all reasonable set-up and conversion costs associated with the Standby Servicer, and accordingly, the Independent Investment Advisor recommends in writing that CT Bank be so replaced as Servicer; provided, however, that no servicer termination event in respect transfer of the Series 2019-1 Ownership Interest will be considered to have occurred if, on or before the fifth (5th) Business Day occurring after such recommendation, the holders of the Series 2019-1 Notes provide the Issuer Trustee with a Noteholder Direction servicing rights to the effect that such event shall not give rise to a servicer termination event for these purposesSuccessor Servicer.
(2) A servicer termination event in respect of the Series 2019-1 Ownership Interest may be waived by the Series 2019-1 Co-Owner.
Appears in 1 contract
Sources: Loan Funding and Servicing Agreement (American Capital Strategies LTD)
Servicer Termination Events. (1) The occurrence of any one or more Each of the following events shall be constitute a “servicer termination event” in relation to the Series 2019-1 Ownership Interest"SERVICER TERMINATION EVENT":
(a) Any failure by the Servicer fails to make any distribution, transfer payment or deposit required in respect to be made by the Servicer hereunder, under the Lockbox Agreement or any other Transaction Document and the continuance of the Series 2019-1 Ownership Interest and such failure continues for a period of five (5) Business Days, or the Servicer fails to observe or perform any covenant or agreement contained in the Pooling and Servicing Agreement or this Series 2019-1 Purchase Agreement, if such failure has a material adverse effect on the ability of the Series 2019-1 Co-Owner to satisfy its obligations to holders of the Series 2019-1 Senior Notes or the Series 2019-1 Subordinated Notes and continues unremedied for a period of thirty (30) three Business Days after delivery by the Custodian date on which such payment or the Issuer Trustee of written notice thereof to the Servicerdeposit was due and not made;
(b) Failure on the Servicer's part to observe or perform in any representation material respect any covenant or warranty made by agreement in this Agreement, the Servicer in the Pooling and Servicing Lockbox Agreement or any other Transaction Document (other than a covenant or agreement, the breach of which is specifically addressed elsewhere in this Series 2019-1 Purchase Agreement is found to have been incorrect when made, or any information required thereby or hereby to be given by the Servicer is found to have been incorrect when given, and such incorrect representation, warranty or information has a material adverse effect on the ability of the Series 2019-1 Co-Owner to satisfy its obligations to holders of the Series 2019-1 Senior Notes or the Series 2019-1 Subordinated Notes and Section) which continues to be incorrect or unremedied for a period 30 days after the date on which notice of thirty (30) Business Days after delivery by the Custodian such failure is delivered to Servicer or the Issuer Trustee Servicer otherwise has actual knowledge of written notice thereof to the Servicersuch fact;
(c) Any assignment by the Servicer of its duties or rights hereunder, under the Lockbox Agreement, or any other Transaction Document, except where the terms of Section 9.5 as specifically permitted hereunder or thereunder, or any attempt to make such an assignment;
(d) An involuntary case under any applicable bankruptcy, insolvency or other similar law shall have been commenced in respect of the Pooling Servicer and Servicing Agreement shall not have been complied withdismissed within 30 days, there is commenced against or a court having jurisdiction in the premises shall have entered a decree or order for relief in respect of the Servicer in an involuntary case under any proceeding applicable bankruptcy, insolvency or the taking of any step by other similar law now or against the Servicer for the dissolutionhereafter in effect, liquidation or winding up appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Servicer or for any relief from the laws substantial liquidation or winding up of its affairs;
(e) The Servicer shall have commenced a voluntary case under any jurisdiction relating to applicable bankruptcy, insolvency, reorganization, arrangement, compromise insolvency or winding upother similar law now or hereafter in effect, or shall have consented to the entry of an order for relief in an involuntary case under any such law, or shall have consented to the appointment of one or more of taking possession by a receiver, liquidator, assignee, trustee, receiver, receiver and manager, custodian, liquidator custodian or sequestrator (or other person with similar powers with respect to official) of the ServicerServicer or for any substantial part of its property, unless such proceeding or step is being contested shall have made any general assignment for the benefit of its creditors, or shall have failed to, or admitted in good faith by writing its inability to, pay its debts as they become due, or shall have taken any corporate action in furtherance of the Servicerforegoing;
(df) Any failure by the Servicer ceases to carry deliver the reports described in Article Nine of this Agreement which remains uncured for three Business Days after the date on a revolving credit card business except which such failure commences; PROVIDED, HOWEVER that the period within which Servicer shall deliver such reports shall be extended to such longer period as is appropriate in the course event of carrying out a transaction Force Majeure Delay;
(g) Any representation, warranty or statement of the Servicer made in this Agreement or any certificate, report or other writing delivered pursuant hereto shall prove to be incorrect in any material respect as of the time when the same shall have been made and, within 30 days after written notice thereof shall have been given to the Servicer by the Trust or Servicer otherwise has actual knowledge thereof, the circumstances or condition in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured;
(h) A default or breach shall occur under any other agreement, document or instrument to which the conditions Servicer is a party or by which the Servicer or its property is bound that is not cured within any applicable grace period therefor, and such default or breach (i) involves the failure to make any payment when due in respect of Section 9.4 or Section 9.5 any Indebtedness of the Pooling and Servicing Agreement are observed and performed; and
Servicer in excess of five percent (e5%) if CT Bank of the Servicer's Tangible Net Worth, or (ii) causes, or permits any holder of such Indebtedness or a trustee or agent to cause, Indebtedness or a portion thereof in excess of five percent (5%) of the Servicer's Tangible Net Worth to become due prior to its stated maturity or prior to its regularly scheduled dates of payment, regardless of whether such default is the Servicer and a Standby Servicer and an Independent Investment Advisor have been appointed and have agreed to act under Section 9.2waived, the Independent Investment Advisor notifies the Series 2019-1 Co-Owneror such right is exercised, the Administrator and CT Bank in writing that:by such holder, trustee or agent;
(i) in its reasonable opinion, there has been a material adverse change in the financial condition or operation As of CT Bank that is reasonably likely to result in CT Bank being unable to pay its liabilities as they become due within ninety (90) days of the date on which the Independent Investment Advisor became aware of such material adverse change, and
(ii) as a result of such material adverse changeany Determination Date, the Independent Investment Advisor believes that it is in the best interests of the holders of Series 2019-1 Notes that CT Bank be replaced as the Servicer by the Standby ServicerTrailing Three Month (31 to 59), (60 to 89) and accordingly(90 to 119) Day Delinquency Rates exceed 8.0%, the Independent Investment Advisor recommends in writing that CT Bank be so replaced as Servicer6.0% and 4.0%, respectively; provided, however, that no servicer termination event in respect if such Determination Date is after the Purchase Period Termination Date and the Asset Pool aggregate Receivable Balance as of such Determination Date is less than 7.50% of the Series 2019-1 Ownership Interest will aggregate of the original Receivables Balances of all Receivables at any time in the Asset Pool, such test shall no longer be considered applicable; or
(j) As of any Determination Date, the Trailing Three Month Gross Recoveries shall be less than 80%. In the event that any party hereto becomes aware of a Servicer Termination Event (or an event which with the passage of time or giving of notice would become a Servicer Termination Event) such party shall promptly notify the other parties hereto. Additionally, upon the occurrence of a Servicer Termination Event and the Facility Administrator's giving of notice of a Service Transfer pursuant to Section 8.2(a) hereof, such Servicer Termination Event shall be irrevocably deemed to have occurred if, on or before the fifth (5th) Business Day occurring after such recommendation, the holders "OCCURRED AND BE CONTINUING" unless otherwise waived by more than 50% of the Series 2019-1 Notes provide outstanding balance of each Class of Notes; PROVIDED, FURTHER, that so long as Bluegreen or an Affiliate of Bluegreen is not the Issuer Trustee with a Noteholder Direction to the effect that such event Servicer, clauses (h), (i) and (j) of this Section 8.1 shall not give rise to constitute a servicer termination event for these purposesServicer Termination Event.
(2) A servicer termination event in respect of the Series 2019-1 Ownership Interest may be waived by the Series 2019-1 Co-Owner.
Appears in 1 contract
Servicer Termination Events. (1) The occurrence of If any one or more of the following events ("SERVICER TERMINATION EVENTS") shall occur and be a “servicer termination event” in relation to the Series 2019-1 Ownership Interestcontinuing:
(a) the Seller or the Servicer fails (if BusLease or an Affiliate thereof) shall fail to make any distribution, transfer payment or deposit required in respect of the Series 2019-1 Ownership Interest and such failure continues for a period of five (5) Business Days, or the Servicer fails to observe or perform any covenant or agreement contained in the Pooling and Servicing Agreement or this Series 2019-1 Purchase Agreement, if such failure has a material adverse effect hereunder on the ability of first Business Day after the Series 2019-1 Co-Owner to satisfy its obligations to holders of the Series 2019-1 Senior Notes or the Series 2019-1 Subordinated Notes and continues unremedied for a period of thirty (30) Business Days after delivery by the Custodian or the Issuer Trustee of written notice thereof to the Servicer;due date thereof; or
(b) any representation or warranty made or deemed made by the Seller, the Servicer (if BusLease or an Affiliate thereof), any Transferor or Motor Coach (or any of their respective Responsible Officers) in the Pooling and Servicing this Agreement or this Series 2019-1 Purchase Agreement is found any Related Document or in any written report delivered by any of them pursuant hereto shall prove to have been incorrect or untrue in any respect when mademade 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 information required thereby or hereby to be given by the Servicer is found to have been incorrect when given, and such incorrect representation, warranty or information has a material adverse effect on the ability of the Series 2019-1 Co-Owner representations or warranties contained in SECTION 4.01(n), (o), (q), (r), (s) (but only to satisfy its obligations the extent that such representation or warranty relates to holders of a Purchased Receivable), (v), (x), (y), (cc) or (ff) shall not be a Servicer Termination Event hereunder if the Series 2019-1 Senior Notes Seller or the Series 2019-1 Subordinated Notes and continues to be incorrect or unremedied for a period of thirty (30Servicer, as the case may be, shall have complied with SECTION 2.03(g) Business Days after delivery by the Custodian or the Issuer Trustee of written notice thereof to the Servicer;with respect thereto; or
(c) except where the terms of Section 9.5 of the Pooling and Servicing Agreement have been complied withSeller, there is commenced against the Servicer (if BusLease or an Affiliate thereof) any proceeding Transferor or Motor Coach shall fail to perform or 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 Purchaser's interest in, or the taking of collectibility of, the Purchased Receivables; PROVIDED, HOWEVER, that the failure to perform or observe any step by term, covenant or against agreement contained in SECTION 5.03(a) shall not be a Servicer Termination Event hereunder if the Seller or the Servicer for the dissolution, liquidation or winding up of the Servicer or for any relief from the laws of any jurisdiction relating to bankruptcy, insolvency, reorganization, arrangement, compromise or winding up, or for the appointment of one or more of a trustee, receiver, receiver and manager, custodian, liquidator or other person shall have complied with similar powers SECTION 2.03(g) with respect to the Servicer, unless such proceeding or step is being contested in good faith by the Servicer;thereto; or
(d) the Seller, the Servicer ceases to carry (if BusLease or an Affiliate thereof), any Transferor or Motor Coach shall (i) default in making any payment of principal of any Indebtedness on a revolving credit card business except 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 course instrument or agreement under which such Indebtedness was created; or (iii) default in the observance or performance of carrying out a transaction any other agreement or condition relating to any such Indebtedness or contained in respect 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 conditions holder or beneficiary of Section 9.4 such Indebtedness (or Section 9.5 a trustee or agent on behalf of such holder or beneficiary ) to cause, with the Pooling and Servicing Agreement are observed and performedgiving of notice if required, such Indebtedness to become due prior to its stated maturity or to become payable; andPROVIDED, that, in each case, other than with respect to the Seller, such Indebtedness is in excess of $5,000,000; or
(e) if CT Bank is 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 Standby Servicer and an Independent Investment Advisor case or proceeding shall have been appointed and have agreed to act under Section 9.2commenced against any of the Seller, the Independent Investment Advisor notifies 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 Series 2019United 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-1 Co-Ownerup 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 Administrator 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 CT Bank 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 custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) of any such Person or of any substantial part of any such Person's assets, (iii) shall make an assignment for the benefit of creditors, or (iv) shall take any corporate action in furtherance of any of the foregoing, or (v) shall admit in writing that:its inability to, or shall be generally unable to, pay its debts as such debts become due; or
(h) a final judgment or judgments for the payment of money not fully covered by insurance in excess of $5,000,000 (net of insurance coverage) in the aggregate at any time outstanding shall be rendered against the Servicer (if BusLease or an Affiliate thereof), any Transferor or Motor Coach and the same shall not, within thirty (30) days after the entry thereof, have been discharged or execution thereof stayed or bonded pending appeal, or shall not have been discharged prior to the expiration of any such stay; or
(i) any final judgment or order for the payment of money shall be rendered against the Seller, and the same shall not have been discharged thereof by full payment prior to the expiration of any period for filing appeal; or
(j) any Related Document or any material provision of any thereof shall for any reason terminate or otherwise cease to be valid, binding and enforceable in accordance with its reasonable opinionterms (or the Seller, there any Affiliate thereof or any other party to any Related Document (other than the Administrative Agent or the 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 any Related Document or any provision of any thereof has been terminated or ceased to be or otherwise is not valid, binding and enforceable in accordance with its terms), or any security or ownership interest created under any Related Documents shall cease to be a material adverse valid and perfected first priority security or ownership interest or Lien (except as otherwise permitted herein or therein) in any Purchased Receivables or property purported to be covered thereby; or
(k) the Seller shall not be a 100% direct or indirect wholly-owned Subsidiary of MCII Coaches, Inc. or the Servicer (if BusLease or an Affiliate thereof) shall not be a 100% direct or indirect wholly-owned Subsidiary of Motor Coach; or
(l) any change in the financial condition or operation ownership of CT Bank that is reasonably likely to result in CT Bank being unable to pay its liabilities as they become due within ninety (90) days 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 opinion of Skadden, Arps, Slate Meager & ▇▇▇▇, dated the date on which hereof, relating to certain nonconsolidation matters.
(m) any Governmental Authority (including the Independent Investment Advisor became aware IRS or the PBGC) shall file notice of such material adverse changea Lien with regard to any of the assets of the Seller, andthe Servicer (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 legal and equitable title to, and ownership of, the Receivables, Contracts and Financed Vehicles purported to be transferred thereunder, or (ii) as a result default or breach shall occur under any other provision of 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 ending on March 31 most recently completed, (v) the Consolidated Fixed Charge Coverage Ratio shall at any time be less than the Minimum Permitted Fixed Charge Coverage Ratio for the fiscal period ending on March 31 most recently completed, or (vi) 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 deposit in the Cash Collateral Account shall be less than the Required Credit Enhancement and such material adverse changedeficiency shall not be cured within 30 days; or
(r) FSA 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 Independent Investment Advisor believes Controlling Party shall, upon at least five (5) Business Days' notice to the Servicer and the Seller (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 (who shall assume the 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 best interests Backup Servicing Agreement, any other Person as the new Servicer, take control of the holders Lockbox Accounts (by delivering to the Lockbox Banks a notice in substantially the form of Series 2019-1 Notes that CT Bank be replaced 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 by the Standby Servicer, and accordinglyTermination Date, the Independent Investment Advisor recommends Purchaser or the Administrative Agent may, in writing that CT Bank be so replaced as Servicer; providedits sole discretion, howeverby notice to the Seller, that no servicer termination event in respect of declare the Series 2019-1 Ownership Interest will be considered Facility Termination Date to have occurred if(in which case the Facility Termination Date shall be deemed to have occurred); PROVIDED, on that automatically upon the occurrence of any event (without any requirement for the passage of time or before the fifth giving of notice) described in Section 7.01(f) or (5th) 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 occurring after such recommendationthe 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 holders 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 Series 2019-1 Notes provide other actions described above at any time in its sole discretion; PROVIDED, HOWEVER, that the Issuer Trustee with a Noteholder Direction to the effect that such event consent of FSA shall not give rise to a servicer termination event for these purposesbe required and the instructions of FSA need not be followed if an FSA Default has occurred.
(2) A servicer termination event in respect of the Series 2019-1 Ownership Interest may be waived by the Series 2019-1 Co-Owner.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Motor Coach Industries International Inc)
Servicer Termination Events. (1) The occurrence of If any one or more of the following events ("Servicer Termination Events") shall occur and be a “servicer termination event” in relation to the Series 2019-1 Ownership Interestcontinuing:
(a) the Seller or the Servicer fails (if BusLease or an Affiliate thereof) shall fail to make any distribution, transfer payment or deposit required in respect of the Series 2019-1 Ownership Interest and such failure continues for a period of five (5) Business Days, or the Servicer fails to observe or perform any covenant or agreement contained in the Pooling and Servicing Agreement or this Series 2019-1 Purchase Agreement, if such failure has a material adverse effect hereunder on the ability of first Business Day after the Series 2019-1 Co-Owner to satisfy its obligations to holders of the Series 2019-1 Senior Notes or the Series 2019-1 Subordinated Notes and continues unremedied for a period of thirty (30) Business Days after delivery by the Custodian or the Issuer Trustee of written notice thereof to the Servicer;due date thereof; or
(b) any representation or warranty made or deemed made by the Seller, the Servicer (if BusLease or an Affiliate thereof), any Transferor or Motor Coach (or any of their respective Responsible Officers) in the Pooling and Servicing this Agreement or this Series 2019-1 Purchase Agreement is found any Related Document or in any written report delivered by any of them pursuant hereto shall prove to have been incorrect or untrue in any respect when mademade 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 information required thereby or hereby to be given by the Servicer is found to have been incorrect when given, and such incorrect representation, warranty or information has a material adverse effect on the ability of the Series 2019-1 Co-Owner representations or warranties contained in SECTION 4.01(n), (o), (q), (r), (s) (but only to satisfy its obligations the extent that such representation or warranty relates to holders of a Purchased Receivable), (v), (x), (y), (cc) or (ff) shall not be a Servicer Termination Event hereunder if the Series 2019-1 Senior Notes Seller or the Series 2019-1 Subordinated Notes and continues to be incorrect or unremedied for a period of thirty (30Servicer, as the case may be, shall have complied with SECTION 2.03(g) Business Days after delivery by the Custodian or the Issuer Trustee of written notice thereof to the Servicer;with respect thereto; or
(c) except where the terms of Section 9.5 of the Pooling and Servicing Agreement have been complied withSeller, there is commenced against the Servicer (if BusLease or an Affiliate thereof) any proceeding Transferor or Motor Coach shall fail to perform or 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 Purchaser's interest in, or the taking of collectibility of, the Purchased Receivables; PROVIDED, HOWEVER, that the failure to perform or observe any step by term, covenant or against agreement contained in SECTION 5.03(a) shall not be a Servicer Termination Event hereunder if the Seller or the Servicer for the dissolution, liquidation or winding up of the Servicer or for any relief from the laws of any jurisdiction relating to bankruptcy, insolvency, reorganization, arrangement, compromise or winding up, or for the appointment of one or more of a trustee, receiver, receiver and manager, custodian, liquidator or other person shall have complied with similar powers SECTION 2.03(g) with respect to the Servicer, unless such proceeding or step is being contested in good faith by the Servicer;thereto; or
(d) the Seller, the Servicer ceases to carry (if BusLease or an Affiliate thereof), any Transferor or Motor Coach shall (i) default in making any payment of principal of any Indebtedness on a revolving credit card business except 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 course instrument or agreement under which such Indebtedness was created; or (iii) default in the observance or performance of carrying out a transaction any other agreement or condition relating to any such Indebtedness or contained in respect 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 conditions holder or beneficiary of Section 9.4 such Indebtedness (or Section 9.5 a trustee or agent on behalf of such holder or beneficiary ) to cause, with the Pooling and Servicing Agreement are observed and performedgiving of notice if required, such Indebtedness to become due prior to its stated maturity or to become payable; andPROVIDED, that, in each case, other than with respect to the Seller, such Indebtedness is in excess of $5,000,000; or
(e) if CT Bank is 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 Standby Servicer and an Independent Investment Advisor case or proceeding shall have been appointed and have agreed to act under Section 9.2commenced against any of the Seller, the Independent Investment Advisor notifies 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 Series 2019United 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-1 Co-Ownerup or liquidation of the affairs of any such Person, 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 Administrator 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 CT Bank 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 custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) of any such Person or of any substantial part of any such Person's assets, (iii) shall make an assignment for the benefit of creditors, or (iv) shall take any corporate action in furtherance of any of the foregoing, or (v) shall admit in writing that:its inability to, or shall be generally unable to, pay its debts as such debts become due; or
(h) a final judgment or judgments for the payment of money not fully covered by insurance in excess of $5,000,000 (net of insurance coverage) in the aggregate at any time outstanding shall be rendered against the Servicer (if BusLease or an Affiliate thereof), any Transferor or Motor Coach and the same shall not, within thirty (30) days after the entry thereof, have been discharged or execution thereof stayed or bonded pending appeal, or shall not have been discharged prior to the expiration of any such stay; or
(i) any final judgment or order for the payment of money shall be rendered against the Seller, and the same shall not have been discharged thereof by full payment prior to the expiration of any period for filing appeal; or
(j) any Related Document or any material provision of any thereof shall for any reason terminate or otherwise cease to be valid, binding and enforceable in accordance with its reasonable opinionterms (or the Seller, there any Affiliate thereof or any other party to any Related Document (other than the Administrative Agent or the 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 any Related Document or any provision of any thereof has been terminated or ceased to be or otherwise is not valid, binding and enforceable in accordance with its terms), or any security or ownership interest created under any Related Documents shall cease to be a material adverse valid and perfected first priority security or ownership interest or Lien (except as otherwise permitted herein or therein) in any Purchased Receivables or property purported to be covered thereby; or
(k) the Seller shall not be a 100% direct or indirect wholly- owned Subsidiary of MCII Coaches, Inc. or the Servicer (if BusLease or an Affiliate thereof) shall not be a 100% direct or indirect wholly-owned Subsidiary of Motor Coach; or
(l) any change in the financial condition or operation ownership of CT Bank that is reasonably likely to result in CT Bank being unable to pay its liabilities as they become due within ninety (90) days 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 opinion of Skadden, Arps, Slate Meager & ▇▇▇▇, dated the date on which hereof, relating to certain nonconsolidation matters.
(m) any Governmental Authority (including the Independent Investment Advisor became aware IRS or the PBGC) shall file notice of such material adverse changea Lien with regard to any of the assets of the Seller, andthe Servicer (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 legal and equitable title to, and ownership of, the Receivables, Contracts and Financed Vehicles purported to be transferred thereunder, or (ii) as a result default or breach shall occur under any other provision of 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 ending on March 31 most recently completed, (v) the Consolidated Fixed Charge Coverage Ratio shall at any time be less than the Minimum Permitted Fixed Charge Coverage Ratio for the fiscal period ending on March 31 most recently completed, or (vi) 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 deposit in the Cash Collateral Account shall be less than the Required Credit Enhancement and such material adverse changedeficiency shall not be cured within 30 days; or
(r) FSA 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 Independent Investment Advisor believes Controlling Party shall, upon at least five (5) Business Days' notice to the Servicer and the Seller (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 (who shall assume the 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 best interests Backup Servicing Agreement, any other Person as the new Servicer, take control of the holders Lockbox Accounts (by delivering to the Lockbox Banks a notice in substantially the form of Series 2019-1 Notes that CT Bank be replaced 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. Following the occurrence of a Servicer by Termination Event and the Standby 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 accordinglyto take the other actions described above at any time in its sole discretion; PROVIDED, the Independent Investment Advisor recommends in writing that CT Bank be so replaced as Servicer; provided, howeverHOWEVER, that no servicer termination event in respect the consent of the Series 2019-1 Ownership Interest will be considered to have occurred if, on or before the fifth (5th) Business Day occurring after such recommendation, the holders of the Series 2019-1 Notes provide the Issuer Trustee with a Noteholder Direction to the effect that such event FSA shall not give rise to a servicer termination event for these purposesbe required and the instructions of FSA need not be followed if an FSA Default has occurred.
(2) A servicer termination event in respect of the Series 2019-1 Ownership Interest may be waived by the Series 2019-1 Co-Owner.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Motor Coach Industries International Inc)
Servicer Termination Events. (1a) The occurrence of any In case one or more of the following events (each a "Servicer Termination Event") by the Servicer shall occur and be a “servicer termination event” in relation continuing, that is to the Series 2019-1 Ownership Interestsay:
(ai) any failure by the Servicer fails to make any distributionremit when due to the Noteholders, transfer or deposit required in respect to the Indenture Trustee for the benefit of the Series 2019-1 Ownership Interest Noteholders and such failure continues for a period of five (5) Business DaysHedge Counterparties, or to the Owner Trustee for the benefit of the Certificateholders, any payment required to be made under the terms of the Basic Documents, it being understood that the Servicer fails shall not be responsible for the failure of either the Owner Trustee or the Indenture Trustee to remit funds that were received by the Owner Trustee or the Indenture Trustee from the Servicer in accordance with the Basic Documents; or
(ii) failure by the Servicer duly to observe or perform perform, in any covenant material respect, any other covenants, obligations or agreement contained agreements of the Servicer as set forth in the Pooling and Servicing Basic Documents, or any representation or warranty of the Servicer made in this Agreement or this Series 2019-1 Purchase Agreement, if such failure any other Basic Document or in any certificate or other writing delivered thereto or in connection therewith proves to have been incorrect when made and has a material adverse effect on the ability rights of the Series 2019-1 Co-Owner to satisfy its obligations to holders of the Series 2019-1 Senior Notes or the Series 2019-1 Subordinated Notes and Noteholders, which failure continues unremedied for a period of thirty 30 days (30if such failure can be remedied) Business Days after delivery the earlier to occur of (A) the date on which written notice of such failure, requiring the same to be remedied, shall have been given to a Responsible Officer of the Servicer by the Custodian Indenture Trustee or 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
(iii) a decree or order of a court or agency or supervisory authority having jurisdiction for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force, undischarged or unstayed for a period of 30 days; or
(iv) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of the Servicer's property; or
(v) the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations; or
(vi) without the prior written consent of the Majority Noteholders, the Servicer agrees or consents to, or otherwise permits to occur, any amendment, modification, change, supplement or recision of or to the Servicer or the Issuer Trustee of written notice thereof to the Servicer;
(b) Credit and Collection Policy, in whole or in part, in any representation or warranty made by the Servicer in the Pooling and Servicing Agreement or this Series 2019-1 Purchase Agreement is found to manner that would have been incorrect when made, or any information required thereby or hereby to be given by the Servicer is found to have been incorrect when given, and such incorrect representation, warranty or information has a material adverse effect on the ability Commercial Loans; or
(vii) failure by the Servicer to observe or perform the Credit and Collection Policy regarding the servicing of the Series 2019-1 Co-Owner to satisfy its obligations to holders of Commercial Loans in any manner that would have a material adverse effect on the Series 2019-1 Senior Notes or the Series 2019-1 Subordinated Notes and continues Commercial Loans; or
(viii) either (A) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ceases to be incorrect or unremedied for a period of thirty (30) Business Days after delivery by actively involved in the Custodian or the Issuer Trustee of written notice thereof to the Servicer;
(c) except where the terms of Section 9.5 of the Pooling and Servicing Agreement have been complied with, there is commenced against the Servicer any proceeding or the taking of any step by or against the Servicer for the dissolution, liquidation or winding up credit decisions of the Servicer (unless waived by the Majority Noteholders, which waiver may be granted or for withheld in their sole direction) or (B) any relief from of the laws following ceases to be actively involved in the management of the Servicer (unless waived by the Majority Noteholders, which waiver will not be unreasonably withheld): ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇; or
(ix) the consolidated net worth of the Servicer (inclusive of all committed capital), as measured as of the end of any jurisdiction relating fiscal quarter of Servicer, shall be less than the greater of (a) $115,000,000 and (b) 15% of the aggregate outstanding principal balance of the commercial loans that are being serviced by Servicer and are owned by Servicer or an Affiliate of Servicer (including MCG Master Trust).
(b) then, and in each and every such case, so long as a Servicer Termination Event shall not have been remedied, the Majority Noteholders, by notice in writing to bankruptcy, insolvency, reorganization, arrangement, compromise or winding up, or for the appointment of one or more of a trustee, receiver, receiver and manager, custodian, liquidator or other person with similar powers Servicer (except with respect to (iii), (iv) and (v) for which no notice is required) may, 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 the rights and obligations of the Servicer under this Agreement and in and to the Commercial Loans and the proceeds thereof, as Servicer, unless . Upon such proceeding or step is being contested in good faith receipt by the Servicer;
(d) Servicer of a written notice from the Majority Noteholders stating that they or it intend to terminate the Servicer ceases to carry on a revolving credit card business except in the course of carrying out a transaction in respect of which the conditions of Section 9.4 or Section 9.5 of the Pooling and Servicing Agreement are observed and performed; and
(e) if CT Bank is the Servicer and a Standby Servicer and an Independent Investment Advisor have been appointed and have agreed to act under Section 9.2, the Independent Investment Advisor notifies the Series 2019-1 Co-Owner, the Administrator and CT Bank in writing that:
(i) in its reasonable opinion, there has been a material adverse change in the financial condition or operation of CT Bank that is reasonably likely to result in CT Bank being unable to pay its liabilities as they become due within ninety (90) days of the date on which the Independent Investment Advisor became aware of such material adverse change, and
(ii) as a result of such material adverse changeServicer 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 Independent Investment Advisor believes that it is in the best interests transfer and endorsement or assignment of the holders of Series 2019-1 Notes that CT Bank be replaced as the Servicer by the Standby Servicer, Commercial Loans and accordingly, the Independent Investment Advisor recommends in writing that CT Bank be so replaced as Servicer; provided, however, that no servicer termination event in respect of the Series 2019-1 Ownership Interest will be considered to have occurred if, on or before the fifth (5th) Business Day occurring after such recommendation, the holders of the Series 2019-1 Notes provide the Issuer Trustee with a Noteholder Direction to the effect that such event shall not give rise to a servicer termination event for these purposesrelated documents.
(2) A servicer termination event in respect of the Series 2019-1 Ownership Interest may be waived by the Series 2019-1 Co-Owner.
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