The Collection Account. (a) On or prior to the Closing Date, the Borrower shall establish and shall thereafter maintain an Eligible Account in the name of the Borrower for the purpose of receiving Collections (the “Collection Account”). The taxpayer identification number associated with the Collection Account shall be that of the Borrower and the Borrower will report for Federal, state and local income taxes, the income, if any, represented by the Collection Account. (b) The Collection Account shall initially be established at ▇▇▇▇▇ Fargo Bank, National Association. ▇▇▇▇▇ Fargo Bank, National Association hereby confirms that it is a national banking association and shall act as a “securities intermediary” (as defined in Section 8-102 of the UCC) and a “bank” (as defined in Section 9-102 of the UCC) hereunder (in such capacities, the “Securities Intermediary”) with respect to the Collection Account and that the account number of the Collection Account is [***]. (c) The Collection Account shall be a “securities account” as defined in Section 8-501 of the UCC and shall be maintained by the Securities Intermediary as a securities intermediary in the name of the Borrower, subject to the lien of the Program Agent, for the benefit of the Secured Parties. The Securities Intermediary shall treat the Program Agent as the “entitlement holder” (within the meaning of Section 8-102(a)(7) of the UCC) in respect of all “financial assets” (within the meaning of Section 8-102(a)(9) of the UCC) credited to the Collection Account; (d) The Securities Intermediary hereby confirms and agrees that: (i) the Securities Intermediary shall not change the name or account number of the Collection Account without the prior written consent of the Program Agent; (ii) all securities or other property underlying any financial assets (as hereinafter defined) credited to the Collection Account shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or indorsed in blank or credited to another securities account maintained in the name of the Securities Intermediary, and in no case will any financial asset credited to the Collection Account be registered in the name of the Borrower or any other Person, payable to the order of the Borrower or specially indorsed to the Borrower or any other Person, except to the extent the foregoing have been specially indorsed to the Program Agent, for the benefit of the Secured Parties, or in blank; (iii) all property transferred or delivered to the Securities Intermediary pursuant to this Agreement will be promptly credited to the Collection Account; (iv) the Collection Account is an account to which financial assets are or may be credited, and the Securities Intermediary shall, subject to the terms of this Agreement, treat each of the Borrower and the Servicer as entitled to exercise the rights that comprise any financial asset credited to each such account; (v) the Securities Intermediary shall promptly deliver copies of all statements, confirmations and other correspondence concerning the Collection Account and/or any financial assets credited thereto simultaneously to each of the Servicer (on behalf of the Borrower) and the Program Agent at the address for each set forth on Schedule II to this Agreement; and (vi) notwithstanding the intent of the parties hereto, to the extent that Collection Account shall be determined to constitute a “deposit account” within the meaning of Section 9-102(a)(29) of the UCC, the Collection Account shall be subject to the exclusive control of the Program Agent, for the benefit of the Secured Parties, and the Securities Intermediary will comply with instructions originated by the Program Agent directing disposition of the funds in the Collection Account without further consent by the Borrower or the Servicer; provided that, notwithstanding the foregoing, until such time as the Securities Intermediary receives a Notice of Exclusive Control (as defined below), the Program Agent hereby authorizes the Securities [***] Confidential information on this page has been omitted and filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Request. Intermediary to honor all withdrawal, payment, transfer or other instructions directing disposition of the funds in the Collection Account received from the Borrower or the Servicer, on its behalf. (e) The Securities Intermediary hereby agrees that each item of property (including, without limitation, any investment property, financial asset, security, instrument or cash) credited to the Collection Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the UCC. (f) Except as otherwise set forth in Section 2.20(g) and (h), the Securities Intermediary will comply with “entitlement orders” (as defined in Section 8-102(a)(8) of the UCC) (“Entitlement Orders”) originated by the Borrower or by the Servicer. Neither the Servicer nor the Borrower shall directly make any withdrawals from the Collection Account. (g) If at any time the Securities Intermediary shall receive any Entitlement Order from the Program Agent (i.e., an order directing a transfer or redemption of any financial asset in the Collection Account), or any “instruction” (within the meaning of Section 9-104 of the UCC), originated by the Program Agent, the Securities Intermediary shall comply with such Entitlement Order or instruction without further consent by the Borrower, the Servicer or any other Person. Notwithstanding the foregoing, the parties hereto agree that the Securities Intermediary will comply with the following with respect to any Entitlement Order or instruction: (i) until its receipt of a Notice of Exclusive Control (as defined below) with respect to the financial assets in the Collection Account, any cash received into the Collection Account may be invested in Permitted Investments selected by the Borrower or by the Servicer; and (ii) from and after its receipt of a Notice of Exclusive Control (as defined below), with respect to the financial assets in the Collection Account and without further consent of the Borrower, the Servicer or any other Person, any cash received into the Collection Account, may be invested in Permitted Investments selected by the Program Agent, for the benefit of the Secured Parties. (h) Upon receipt by the Securities Intermediary of a written notice substantially in the form of Exhibit K hereto (a “Notice of Exclusive Control”), the Securities Intermediary will take all Entitlement Orders, instructions or other directions it receives from the Program Agent, on behalf of the Secured Parties, with respect to the Collection Account, without further consent by the Borrower, the Servicer or any other Person, and shall cease complying with Entitlement Orders, instructions or other directions concerning the Collection Account originated by the Borrower, the Servicer or any other Person. (i) In the event that the Securities Intermediary has or subsequently obtains by agreement, by operation of law or otherwise a security interest in any of the Collection Account or any financial assets, funds, cash or other property credited thereto or any security entitlement with respect thereto, the Securities Intermediary hereby agrees that such security interest shall be subordinate to the security interest of the Program Agent, for the benefit of the Secured Parties. Notwithstanding the preceding sentence, the financial assets, funds, cash or other property credited to any of the Collection Account will not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than the Program Agent, for the benefit of the Secured Parties (except that the Securities Intermediary may set-off (i) all amounts due to the Securities Intermediary in respect of customary fees and expenses for the routine maintenance and operation of the Collection Account, and (ii) the face amount of any checks that have been credited to the Collection Account but are subsequently returned unpaid because of uncollected or insufficient funds). (j) Regardless of any provision in any other agreement, for purposes of the UCC, New York shall be deemed to be the “bank’s jurisdiction” (within the meaning of Section 9-304 of the UCC) and the “security intermediary’s jurisdiction” (within the meaning of Section 8-110 of the UCC).
Appears in 3 contracts
Sources: Loan and Servicing Agreement (DT Credit Company, LLC), Loan and Servicing Agreement (DT Credit Company, LLC), Loan and Servicing Agreement (DT Acceptance Corp)
The Collection Account. (a) On or prior to the Closing Date, the Borrower Paying Agent shall establish (or Administrative Agent, at its option, shall establish or cause to be established) and shall thereafter maintain an Eligible the Collection Account in the name of the Borrower for the purpose of receiving Collections Collections. The Paying Agent shall also establish, for purposes of creating the Disbursement Account and the Reserve Accounts, sub-accounts of the Collection Account (the “Collection Account”)which may be ledger or book entry accounts and not actual accounts) or separate Accounts. The taxpayer identification number associated with the Collection Account, Disbursement Account and Reserve Accounts shall be that of the Borrower Representative and the Borrower Representative (and other applicable Borrowers) will report for Federal, state and local income taxes, the income, if any, represented by the Collection Account, Disbursement Account and Reserve Accounts. The Collection Account, Disbursement Account and Reserve Accounts shall be under the sole dominion and control of the Administrative Agent. All costs and expenses of establishing and maintaining the Collection Account, Disbursement Account and Reserve Accounts shall be paid by the Borrowers.
(b) The Collection Account, Disbursement Account and Reserve Accounts shall initially be established and at ▇▇▇▇▇ Fargo Bank, National Association. ▇▇▇▇▇ Fargo Bank, National Association hereby confirms that it is a national banking association and all times maintained with the Paying Agent which shall act as a “securities intermediary” (as defined in Section 8-102 of the UCC) and a “bank” (as defined in Section 9-102 of the UCC) hereunder (in such capacities, the “Securities Intermediary”) with respect to the Collection Account and Account. In the event that the account number of Paying Agent ceases to be a Qualified Institution, the Administrative Agent shall, within thirty (30) days thereof, appoint a Qualified Institution to be the successor Paying Agent and establish a new Collection Account is [***]at such Qualified Institution.
(c) The Collection Account, Disbursement Account and Reserve Accounts shall each be a “securities account” as defined in Section 8-501 of the UCC and shall be maintained by the Securities Intermediary as a securities intermediary in the name of the BorrowerBorrower Representative, subject to the lien of the Program Administrative Agent, for the benefit of the Secured Parties. The Securities Intermediary shall treat the Program Administrative Agent as the “entitlement holder” (within the meaning of Section 8-102(a)(7) of the UCC) in respect of all “financial assets” (within the meaning of Section 8-102(a)(9) of the UCC) credited to the Collection Account;
(d) The Securities Intermediary hereby confirms and agrees that:
(i) the Securities Intermediary shall not change the name or account number of the Collection Account, Disbursement Account or Reserve Accounts without the prior written consent of the Program Administrative Agent;
(ii) all securities or other property underlying any financial assets (as hereinafter defined) credited to the Collection Account, Disbursement Account or Reserve Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or indorsed in blank or credited to another securities account maintained in the name of the Securities Intermediary, and in no case will any financial asset credited to the Collection Account, Disbursement Account or Reserve Accounts be registered in the name of the any Borrower or any other Person, payable to the order of the any Borrower or specially indorsed to the any Borrower or any other Person, except to the extent the foregoing have been specially indorsed to the Program Administrative Agent, for the benefit of the Secured Parties, or in blank;
(iii) all property transferred or delivered to the Securities Intermediary pursuant to this Agreement for deposit into the Collection Account, Disbursement Account or Reserve Accounts will be promptly credited to the Collection Account, Disbursement Account or applicable other Account, as applicable;
(iv) the Collection Account, Disbursement Account is an account and Reserve Accounts are accounts to which financial assets are or may be credited, and the Securities Intermediary shall, subject to the terms of this Agreement, treat each of the Borrower and the Servicer Administrative Agent as entitled to exercise the rights that comprise any financial asset credited to each such account;
(v) the Securities Intermediary shall promptly deliver copies of all statements, confirmations and other correspondence concerning the Collection Account, Disbursement Account and Reserve Accounts and/or any financial assets credited thereto simultaneously to each the Administrative Agent and, upon Borrower Representative’s request from time to time so long as no Event of Default exists to the Servicer (on behalf of the Borrower) and the Program Agent Borrower Representative, at the address for each set forth on Schedule II III to this Agreement; and
(vi) notwithstanding the intent of the parties hereto, to the extent that any Collection Account or any Account shall be determined to constitute a “deposit account” within the meaning of Section 9-102(a)(29) of the UCC, the Collection Account, Disbursement Account and Reserve Accounts shall be subject to the exclusive control of the Program Administrative Agent, for the benefit of the Secured Parties, and the Securities Intermediary will comply with instructions originated by the Program Administrative Agent directing disposition of the funds in the Collection Account, Disbursement Account and Reserve Accounts without further consent by the Borrower or the Servicer; provided that, notwithstanding the foregoing, until such time as the Securities Intermediary receives a Notice of Exclusive Control (as defined below), the Program Agent hereby authorizes the Securities [***] Confidential information on this page has been omitted and filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Request. Intermediary to honor all withdrawal, payment, transfer or other instructions directing disposition of the funds in the Collection Account received from the Borrower or the Servicer, on its behalfBorrowers.
(e) The Securities Intermediary hereby agrees that each item of property (including, without limitation, including any investment property, financial asset, security, instrument or cash) credited to the Collection Account, Disbursement Account and Reserve Accounts shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the UCC.
(f) Except as otherwise set forth in Section 2.20(g2.17(g) and (h), the Securities Intermediary will comply with “entitlement orders” (as defined in Section 8-102(a)(8) of the UCC) (“Entitlement Orders”) originated by the Borrower or by the ServicerBorrowers. Neither the Servicer nor the Borrower The Borrowers shall not directly make any withdrawals from the Collection Account, Disbursement Account and Reserve Accounts.
(g) If at any time the Securities Intermediary shall receive any Entitlement Order from the Program Administrative Agent (i.e., an order directing a transfer or redemption of any financial asset in the Collection Account, Disbursement Account or Reserve Accounts), or any “instruction” (within the meaning of Section 9-104 of the UCC), originated by the Program Administrative Agent, the Securities Intermediary shall comply with such Entitlement Order or instruction without further consent by the Borrower, the Servicer Borrowers or any other Person. Notwithstanding the foregoing, the parties hereto agree that the Securities Intermediary will comply with the following with respect to any Entitlement Order or instruction: (i) until its receipt of a Notice of Exclusive Control (as defined below) with respect to the financial assets in the Collection Account, any Any cash received into the Collection Account or Reserve Accounts may be invested in Permitted Investments selected by the Borrower or by the Servicer; Representative, subject to Section 2.06(e) and (ii) from and after its receipt of a Notice of Exclusive Control (as defined below), with respect to the financial assets in the Collection Account and without further consent of the Borrower, the Servicer or any other Person, any cash received into the Collection Account, may be invested in Permitted Investments selected by the Program Agent, for the benefit of the Secured PartiesSection 6.13.
(h) Upon receipt by the Securities Intermediary of a written notice substantially in the form of Exhibit K hereto (a “Notice of Exclusive Control”), the Securities Intermediary will take all Entitlement Orders, instructions or other directions it receives from the Program Agent, on behalf of the Secured Parties, with respect to the Collection Account, without further consent by the Borrower, the Servicer or any other Person, and shall cease complying with Entitlement Orders, instructions or other directions concerning the Collection Account originated by the Borrower, the Servicer or any other Person.
(i) In the event that the Securities Intermediary has or subsequently obtains by agreement, by operation of law or otherwise a security interest in any of the Collection Account, Disbursement Account or Reserve Accounts or any financial assets, funds, cash or other property credited thereto or any security entitlement with respect thereto, the Securities Intermediary hereby agrees that such security interest shall be subordinate to the security interest of the Program Administrative Agent, for the benefit of the Secured Parties. Notwithstanding the preceding sentence, the financial assets, funds, cash or other property credited to any of the Collection Account, Disbursement Account or Reserve Accounts will not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than the Program Administrative Agent, for the benefit of the Secured Parties (except that the Securities Intermediary may set-off (i) all amounts due to the Securities Intermediary in respect of customary fees and expenses for the routine maintenance and operation of the Collection Account, Disbursement Account and Reserve Accounts, and (ii) the face amount of any checks that have been credited to the Collection Account but are subsequently returned unpaid because of uncollected or insufficient funds).
(ji) Regardless of any provision in any other agreement, for purposes of the UCC, New York shall be deemed to be the “bank’s jurisdiction” (within the meaning of Section 9-304 of the UCC) and the “security intermediary’s jurisdiction” (within the meaning of Section 8-110 of the UCC).
(j) The insufficiency of funds on deposit in the Collection Account, Disbursement Account or Reserve Accounts shall not relieve the Loan Parties from the obligation to make any payments, as and when due pursuant to this Agreement and the other Loan Documents, and such obligations shall be separate and independent, and not conditioned on any event or circumstance whatsoever.
Appears in 3 contracts
Sources: Loan Agreement (Invitation Homes Inc.), Loan Agreement (Invitation Homes Inc.), Loan Agreement (Invitation Homes Inc.)
The Collection Account. (a) On or prior to the Closing Datedate hereof, the Borrower shall establish and shall thereafter maintain an Eligible Account in the name of the Borrower for the purpose of receiving Collections (the “Collection Account”). The taxpayer identification number associated with the Collection Account shall be that of the Borrower and the Borrower will report for Federal, state and local income taxes, the income, if any, represented by the Collection Account.
(b) The Collection Account shall initially be established at ▇▇▇▇▇ Fargo Bank, National Association. ▇▇▇▇▇ Fargo Bank, National Association hereby confirms that it is a national banking association and shall act as a “securities intermediary” (as defined in Section 8-102 of the UCC) and a “bank” (as defined in Section 9-102 of the UCC) hereunder (in such capacities, the “Securities Intermediary”) with respect to the Collection Account and that the account number of the Collection Account is [***].
(c) The Collection Account shall be a “securities account” as defined in Section 8-8- 501 of the UCC and shall be maintained by the Securities Intermediary as a securities intermediary in the name of the Borrower, subject to the lien of the Program AgentLender, for the benefit of the Secured Parties. The Securities Intermediary shall treat the Program Agent Lender as the “entitlement holder” (within the meaning of Section 8-102(a)(7) of the UCC) in respect of all “financial assets” (within the meaning of Section 8-102(a)(9) of the UCC) credited to the Collection Account;
(d) The Securities Intermediary hereby confirms and agrees that:
(i) the Securities Intermediary shall not change the name or account number of the Collection Account without the prior written consent of the Program AgentLender;
(ii) all securities or other property underlying any financial assets (as hereinafter defined) credited to the Collection Account shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or indorsed in blank or credited to another securities account maintained in the name of the Securities Intermediary, and in no case will any financial asset credited to the Collection Account be registered in the name of the Borrower or any other Person, payable to the order of the Borrower or specially indorsed to the Borrower or any other Person, except to the extent the foregoing have been specially indorsed to the Program AgentLender, for the benefit of the Secured Parties, or in blank;
(iii) all property transferred or delivered to the Securities Intermediary pursuant to this Agreement will be promptly credited to the Collection Account;; [***] Confidential information on this page has been omitted and filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Request.
(iv) the Collection Account is an account to which financial assets are or may be credited, and the Securities Intermediary shall, subject to the terms of this Agreement, treat each of the Borrower and the Servicer as entitled to exercise the rights that comprise any financial asset credited to each such account;
(v) the Securities Intermediary shall promptly deliver copies of all statements, confirmations and other correspondence concerning the Collection Account and/or any financial assets credited thereto simultaneously to each of the Servicer (on behalf of the Borrower) and the Program Agent Lender at the address for each set forth on Schedule II to this Agreement; and
(vi) notwithstanding the intent of the parties hereto, to the extent that Collection Account shall be determined to constitute a “deposit account” within the meaning of Section 9-102(a)(29) of the UCC, the Collection Account shall be subject to the exclusive control of the Program AgentLender, for the benefit of the Secured Parties, and the Securities Intermediary will comply with instructions originated by the Program Agent Lender directing disposition of the funds in the Collection Account without further consent by the Borrower or the Servicer; provided that, notwithstanding the foregoing, until such time as the Securities Intermediary receives a Notice of Exclusive Control (as defined below), the Program Agent Lender hereby authorizes the Securities [***] Confidential information on this page has been omitted and filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Request. Intermediary to honor all withdrawal, payment, transfer or other instructions directing disposition of the funds in the Collection Account received from the Borrower or the Servicer, on its behalf.
(e) The Securities Intermediary hereby agrees that each item of property (including, without limitation, any investment property, financial asset, security, instrument or cash) credited to the Collection Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the UCC.
(f) Except as otherwise set forth in Section 2.20(g) and (h), the Securities Intermediary will comply with “entitlement orders” (as defined in Section 8-102(a)(8) of the UCC) (“Entitlement Orders”) originated by the Borrower or by the Servicer. Neither the Servicer nor the Borrower shall directly make any withdrawals from the Collection Account.
(g) If at any time the Securities Intermediary shall receive any Entitlement Order from the Program Agent Lender (i.e., an order directing a transfer or redemption of any financial asset in the Collection Account), or any “instruction” (within the meaning of Section 9-104 of the UCC), originated by the Program AgentLender, the Securities Intermediary shall comply with such Entitlement Order or instruction without further consent by the Borrower, the Servicer or any other Person. Notwithstanding the foregoing, the parties hereto agree that the Securities Intermediary will comply with the following with respect to any Entitlement Order or instruction: (i) until its receipt of a Notice of Exclusive Control (as defined below) with respect to the financial assets in the Collection Account, any cash received into the Collection Account may be invested in Permitted Investments selected by the Borrower or by the Servicer; and (ii) from and after its receipt of a Notice of Exclusive Control (as defined below), with respect to the financial assets in the Collection Account and without further consent of the Borrower, the Servicer or any other Person, any cash received into the Collection Account, may be invested in Permitted Investments selected by the Program AgentLender, for the benefit of the Secured Parties.
(h) Upon receipt by the Securities Intermediary of a written notice substantially in the form of Exhibit K I hereto (a “Notice of Exclusive Control”), the Securities Intermediary will take all Entitlement Orders, instructions or other directions it receives from the Program AgentLender, on behalf of the Secured Parties, with respect to the Collection Account, without further consent by the Borrower, the Servicer or any other Person, and shall cease complying with Entitlement Orders, instructions or other directions concerning the Collection Account originated by the Borrower, the Servicer or any other Person.
(i) In the event that the Securities Intermediary has or subsequently obtains by agreement, by operation of law or otherwise a security interest in any of the Collection Account or any financial assets, funds, cash or other property credited thereto or any security entitlement with respect thereto, the Securities Intermediary hereby agrees that such security interest shall be subordinate to the security interest of the Program AgentLender, for the benefit of the Secured Parties. Notwithstanding the preceding sentence, the financial assets, funds, cash or other property credited to any of the Collection Account will not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than the Program AgentLender, for the benefit of the Secured Parties (except that the Securities Intermediary may set-off (i) all amounts due to the Securities Intermediary in respect of customary fees and expenses for the routine maintenance and operation of the Collection Account, and (ii) the face amount of any checks that have been credited to the Collection Account but are subsequently returned unpaid because of uncollected or insufficient funds).
(j) Regardless of any provision in any other agreement, for purposes of the UCC, New York shall be deemed to be the “bank’s jurisdiction” (within the meaning of Section 9-304 of the UCC) and the “security intermediary’s jurisdiction” (within the meaning of Section 8-110 of the UCC).
Appears in 3 contracts
Sources: Loan and Servicing Agreement (DT Credit Company, LLC), Loan and Servicing Agreement (DT Credit Company, LLC), Loan and Servicing Agreement (DT Acceptance Corp)
The Collection Account. (a) On or prior to the Closing Date, the Borrower shall establish and shall thereafter maintain an Eligible Account a segregated account in the name of the Borrower for the purpose of receiving Collections (the “Collection Account”). The taxpayer identification number associated with the Collection Account shall be that of the Borrower and the Borrower will report for Federal, state and local income taxes, the income, if any, represented by the Collection Account.
(b) The Collection Account shall initially be established and at ▇▇▇▇▇ Fargo Bank, National Association. ▇▇▇▇▇ Fargo Bank, National Association hereby confirms that it is a national banking association and all times maintained with the Paying Agent which shall act as a “securities intermediary” (as defined in Section 8-102 of the UCC) and a “bank” (as defined in Section 9-102 of the UCC) hereunder (in such capacities, the “Securities Intermediary”) with respect to the Collection Account and Account. ▇▇▇▇▇ Fargo, as initial Paying Agent, hereby confirms that the account number of the Collection Account is [***]▇▇▇▇▇▇▇▇. In the event that the Paying Agent ceases to be a Qualified Institution, the Borrower shall, within thirty (30) days thereof, appoint a Qualified Institution to be the successor Paying Agent and establish a new Collection Account at such Qualified Institution.
(c) The Collection Account shall be a “securities account” as defined in Section 8-501 of the UCC and shall be maintained by the Securities Intermediary as a securities intermediary in the name of the Borrower, subject to the lien of the Program Administrative Agent, for the benefit of the Secured Parties. The Securities Intermediary shall treat the Program Administrative Agent as the “entitlement holder” (within the meaning of Section 8-102(a)(7) of the UCC) in respect of all “financial assets” (within the meaning of Section 8-102(a)(9) of the UCC) credited to the Collection Account;
(d) The Securities Intermediary hereby confirms and agrees that:
(i) the Securities Intermediary shall not change the name or account number of the Collection Account without the prior written consent of the Program Administrative Agent;
(ii) all securities or other property underlying any financial assets (as hereinafter defined) credited to the Collection Account shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or indorsed in blank or credited to another securities account maintained in the name of the Securities Intermediary, and in no case will any financial asset credited to the Collection Account be registered in the name of the Borrower or any other Person, payable to the order of the Borrower or specially indorsed to the Borrower or any other Person, except to the extent the foregoing have been specially indorsed to the Program Administrative Agent, for the benefit of the Secured Parties, or in blank;
(iii) all property transferred or delivered to the Securities Intermediary pursuant to this Agreement will be promptly credited to the Collection Account;
(iv) the Collection Account is an account to which financial assets are or may be credited, and the Securities Intermediary shall, subject to the terms of this Agreement, treat each of the Borrower and the Servicer as entitled to exercise the rights that comprise any financial asset credited to each such account;
(v) the Securities Intermediary shall promptly deliver copies of all statements, confirmations and other correspondence concerning the Collection Account and/or any financial assets credited thereto simultaneously to each of the Servicer (on behalf of the Borrower) and the Program Administrative Agent at the address for each set forth on Schedule II III to this Agreement; and
(vi) notwithstanding the intent of the parties hereto, to the extent that Collection Account shall be determined to constitute a “deposit account” within the meaning of Section 9-102(a)(29) of the UCC, the Collection Account shall be subject to the exclusive control of the Program Administrative Agent, for the benefit of the Secured Parties, and the Securities Intermediary will comply with instructions originated by the Program Administrative Agent directing disposition of the funds in the Collection Account without further consent by the Borrower or the Servicer; provided that, notwithstanding the foregoing, until such time as the Securities Intermediary receives a Notice of Exclusive Control (as defined below), the Program Agent hereby authorizes the Securities [***] Confidential information on this page has been omitted and filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Request. Intermediary to honor all withdrawal, payment, transfer or other instructions directing disposition of the funds in the Collection Account received from the Borrower or the Servicer, on its behalf.
(e) The Securities Intermediary hereby agrees that each item of property (including, without limitation, including any investment property, financial asset, security, instrument or cash) credited to the Collection Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the UCC.
(f) Except as otherwise set forth in Section 2.20(g2.16(g) and (h), the Securities Intermediary will comply with “entitlement orders” (as defined in Section 8-102(a)(8) of the UCC) (“Entitlement Orders”) originated by the Borrower or by the Servicer. Neither the Servicer nor the The Borrower shall not directly make any withdrawals from the Collection Account.
(g) If at any time the Securities Intermediary shall receive any Entitlement Order from the Program Administrative Agent (i.e., an order directing a transfer or redemption of any financial asset in the Collection Account), or any “instruction” (within the meaning of Section 9-104 of the UCC), originated by the Program Administrative Agent, the Securities Intermediary shall comply with such Entitlement Order or instruction without further consent by the Borrower, the Servicer or any other Person. Notwithstanding the foregoing, the parties hereto agree that the Securities Intermediary will comply with the following with respect to any Entitlement Order or instruction: (i) until its receipt of a Notice of Exclusive Control (as defined below) with respect to the financial assets in the Collection Account, any cash received into the Collection Account may be invested in Permitted Investments selected by the Borrower or by the Servicer; and (ii) from and after its receipt of a Notice of Exclusive Control (as defined below), with respect to the financial assets in the Collection Account and without further consent of the Borrower, the Servicer or any other Person, any cash received into the Collection Account, may be invested in Permitted Investments selected by the Program Administrative Agent, for the benefit of the Secured Parties.
(h) Upon receipt by the Securities Intermediary of a written notice substantially in the form of Exhibit K M hereto (a “Notice of Exclusive Control”), the Securities Intermediary will take all Entitlement Orders, instructions or other directions it receives from the Program Administrative Agent, on behalf of the Secured Parties, with respect to the Collection Account and the disposition of funds in the Collection Account, without further consent by the Borrower, the Servicer or any other Person, and shall cease complying with Entitlement Orders, instructions or other directions concerning the Collection Account originated by the Borrower, the Servicer or any other Person. Notwithstanding the foregoing, promptly following receipt by the Administrative Agent of a written notice from the Servicer identifying amounts on deposit in the Collection Account as constituting Miscellaneous Payments, the Administrative Agent will issue an Entitlement Order to the Securities Intermediary to release such Miscellaneous Payments to the Servicer.
(i) In the event that the Securities Intermediary has or subsequently obtains by agreement, by operation of law or otherwise a security interest in any of the Collection Account or any financial assets, funds, cash or other property credited thereto or any security entitlement with respect thereto, the Securities Intermediary hereby agrees that such security interest shall be subordinate to the security interest of the Program Administrative Agent, for the benefit of the Secured Parties. Notwithstanding the preceding sentence, the financial assets, funds, cash or other property credited to any of the Collection Account will not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than the Program Administrative Agent, for the benefit of the Secured Parties (except that the Securities Intermediary may set-off (i) all amounts due to the Securities Intermediary in respect of customary fees and expenses for the routine maintenance and operation of the Collection Account, and (ii) the face amount of any checks that have been credited to the Collection Account but are subsequently returned unpaid because of uncollected or insufficient funds).
(j) Regardless of any provision in any other agreement, for purposes of the UCC, New York shall be deemed to be the “bank’s jurisdiction” (within the meaning of Section 9-304 of the UCC) and the “security intermediary’s jurisdiction” (within the meaning of Section 8-110 of the UCC).
Appears in 2 contracts
Sources: Receivables Loan Agreement and Sale and Contribution Agreement (Hilton Grand Vacations Inc.), Receivables Loan Agreement (Hilton Worldwide Holdings Inc.)
The Collection Account. (a) On or prior to the Closing Date, the Borrower Paying Agent shall establish and shall thereafter maintain an Eligible maintain, at the Securities Intermediary Account in Bank, the name of the Borrower Collection Account for the purpose of receiving Collections Collections. The Paying Agent shall also establish and maintain, at the Securities Intermediary Account Bank, the Disbursement Account and the Reserve Accounts, which may be sub-accounts of the Collection Account (the “Collection Account”)i.e., ledger or book entry accounts and not actual accounts) or separate Accounts. The taxpayer identification number associated with the Collection Account, the Disbursement Account and each Reserve Account shall be that of the Borrower Representative and the Borrower Representative (and other applicable Borrowers) will report for Federalfederal, state and local income taxes, as applicable, the income, if any, represented by the Collection Account, the Disbursement Account and each Reserve Account. The Collection Account, the Disbursement Account and the Reserve Accounts shall be under the sole dominion and control of the Administrative Agent. All costs and expenses of establishing and maintaining the Collection Account, the Disbursement Account and each Reserve Account shall be paid by the Borrowers. For the avoidance of doubt, the Paying Agent (including in its capacity as the Securities Intermediary) shall not be responsible for reviewing and reconciling the Collection Account, the Disbursement Account or any Reserve Account.
(b) The Collection Account, the Disbursement Account and each Reserve Account shall initially be established and at ▇▇▇▇▇ Fargo Bankall times maintained by the Securities Intermediary, National Association. ▇▇▇▇▇ Fargo Bank, National Association hereby confirms that it is a national banking association and which shall act as a “securities intermediary” (as defined in Section 8-102 of the UCC) hereunder and a “bank” (as defined in Section 9-102 of under the UCC) hereunder (in such capacities, the “Securities Intermediary”) Account Control Agreement with respect to the Collection Account, the Disbursement Account and the Reserve Accounts. In the event that the account number of Securities Intermediary Account Bank ceases to be a Qualified Institution, the Securities Intermediary shall, within thirty (30) days thereof, establish a new Collection Account, a new Disbursement Account is [***]and new Reserve Accounts, as applicable, at a Qualified Institution (and the Securities Intermediary shall promptly transfer, or cause to be transferred, all amounts in the then existing Collection Account, Disbursement Account and Reserve Accounts, as applicable, to such new accounts).
(c) The Collection Account, the Disbursement Account, and each Reserve Account shall each be a “securities account” as defined in Section 8-501 of the UCC and shall be maintained by the Securities Intermediary as a securities intermediary shall cause each such account to be maintained in the name of the BorrowerBorrower Representative, subject to the lien of the Program Administrative Agent, for the benefit of the Secured Parties. The Securities Intermediary shall (and agrees to cause the Securities Intermediary Account Bank to) treat the Program Agent Borrower Representative as the “entitlement holder” (within the meaning of Section 8-102(a)(7) of the UCC) under the Securities Account Control Agreement in respect of all “financial assets” (within the meaning of Section 8-102(a)(9) of the UCC) credited to the Collection Account;, Disbursement Account, and any Reserve Account.
(d) The Securities Intermediary hereby confirms and agrees that:
(i) insufficiency of funds on deposit in the Securities Intermediary Collection Account, the Disbursement Account or any Reserve Account shall not change relieve the name or account number of Borrowers from the Collection Account without the prior written consent of the Program Agent;
(ii) all securities or other property underlying obligation to make any financial assets (payments, as hereinafter defined) credited to the Collection Account shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or indorsed in blank or credited to another securities account maintained in the name of the Securities Intermediary, and in no case will any financial asset credited to the Collection Account be registered in the name of the Borrower or any other Person, payable to the order of the Borrower or specially indorsed to the Borrower or any other Person, except to the extent the foregoing have been specially indorsed to the Program Agent, for the benefit of the Secured Parties, or in blank;
(iii) all property transferred or delivered to the Securities Intermediary when due pursuant to this Agreement will be promptly credited to and the Collection Account;
(iv) the Collection Account is an account to which financial assets are or may be creditedother Loan Documents, and the Securities Intermediary shall, subject to the terms of this Agreement, treat each of the Borrower and the Servicer as entitled to exercise the rights that comprise any financial asset credited to each such account;
(v) the Securities Intermediary shall promptly deliver copies of all statements, confirmations and other correspondence concerning the Collection Account and/or any financial assets credited thereto simultaneously to each of the Servicer (on behalf of the Borrower) and the Program Agent at the address for each set forth on Schedule II to this Agreement; and
(vi) notwithstanding the intent of the parties hereto, to the extent that Collection Account obligations shall be determined to constitute a “deposit account” within the meaning of Section 9-102(a)(29) of the UCC, the Collection Account shall be subject to the exclusive control of the Program Agent, for the benefit of the Secured Partiesseparate and independent, and the Securities Intermediary will comply with instructions originated by the Program Agent directing disposition of the funds in the Collection Account without further consent by the Borrower not conditioned on any event or the Servicer; provided that, notwithstanding the foregoing, until such time as the Securities Intermediary receives a Notice of Exclusive Control (as defined below), the Program Agent hereby authorizes the Securities [***] Confidential information on this page has been omitted and filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Request. Intermediary to honor all withdrawal, payment, transfer or other instructions directing disposition of the funds in the Collection Account received from the Borrower or the Servicer, on its behalfcircumstance whatsoever.
(e) The Securities Intermediary hereby agrees that each item rights and protections of property (includingthe Paying Agent hereunder, without limitationincluding the right to indemnification, any investment propertyshall apply, financial assetmutatis mutandis, security, instrument or cash) credited to the Collection Account shall be treated Paying Agent in its capacity as a “financial asset” within the meaning of Section 8-102(a)(9) of the UCC.
(f) Except as otherwise set forth in Section 2.20(g) and (h), the Securities Intermediary will comply with “entitlement orders” (as defined in Section 8-102(a)(8) of the UCC) (“Entitlement Orders”) originated by the Borrower or by the Servicer. Neither the Servicer nor the Borrower shall directly make any withdrawals from the Collection Account.
(g) If at any time under the Securities Intermediary shall receive any Entitlement Order from the Program Agent (i.e., an order directing a transfer or redemption of any financial asset in the Collection Account), or any “instruction” (within the meaning of Section 9-104 of the UCC), originated by the Program Agent, the Securities Intermediary shall comply with such Entitlement Order or instruction without further consent by the Borrower, the Servicer or any other Person. Notwithstanding the foregoing, the parties hereto agree that the Securities Intermediary will comply with the following with respect to any Entitlement Order or instruction: (i) until its receipt of a Notice of Exclusive Account Control (as defined below) with respect to the financial assets in the Collection Account, any cash received into the Collection Account may be invested in Permitted Investments selected by the Borrower or by the Servicer; and (ii) from and after its receipt of a Notice of Exclusive Control (as defined below), with respect to the financial assets in the Collection Account and without further consent of the Borrower, the Servicer or any other Person, any cash received into the Collection Account, may be invested in Permitted Investments selected by the Program Agent, for the benefit of the Secured PartiesAgreement.
(h) Upon receipt by the Securities Intermediary of a written notice substantially in the form of Exhibit K hereto (a “Notice of Exclusive Control”), the Securities Intermediary will take all Entitlement Orders, instructions or other directions it receives from the Program Agent, on behalf of the Secured Parties, with respect to the Collection Account, without further consent by the Borrower, the Servicer or any other Person, and shall cease complying with Entitlement Orders, instructions or other directions concerning the Collection Account originated by the Borrower, the Servicer or any other Person.
(i) In the event that the Securities Intermediary has or subsequently obtains by agreement, by operation of law or otherwise a security interest in any of the Collection Account or any financial assets, funds, cash or other property credited thereto or any security entitlement with respect thereto, the Securities Intermediary hereby agrees that such security interest shall be subordinate to the security interest of the Program Agent, for the benefit of the Secured Parties. Notwithstanding the preceding sentence, the financial assets, funds, cash or other property credited to any of the Collection Account will not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than the Program Agent, for the benefit of the Secured Parties (except that the Securities Intermediary may set-off (i) all amounts due to the Securities Intermediary in respect of customary fees and expenses for the routine maintenance and operation of the Collection Account, and (ii) the face amount of any checks that have been credited to the Collection Account but are subsequently returned unpaid because of uncollected or insufficient funds).
(j) Regardless of any provision in any other agreement, for purposes of the UCC, New York shall be deemed to be the “bank’s jurisdiction” (within the meaning of Section 9-304 of the UCC) and the “security intermediary’s jurisdiction” (within the meaning of Section 8-110 of the UCC).
Appears in 2 contracts
Sources: Loan Agreement (Bluerock Homes Trust, Inc.), Loan Agreement (Bluerock Residential Growth REIT, Inc.)
The Collection Account. The Trustee, (ai) On or prior to for the Closing Datebenefit of the Certificateholders and the Trustee, the Borrower shall establish and shall thereafter maintain an Eligible Account in the name of the Borrower Trustee, on behalf of the Trust, or cause to be established and maintained with a New York State office or branch of a Qualified Institution, a non-interest bearing segregated trust account (the "COLLECTION ACCOUNT") bearing a designation clearly indicating that the funds deposited therein are held in trust for the purpose benefit of receiving Collections the Certificateholders and the Trustee and (ii) for the benefit of the Certificateholders and the Trustee shall establish in the name of the Trustee, on behalf of the Trust, a non-interest bearing segregated account (the “Collection Account”). The taxpayer identification number associated "SWEEP ACCOUNT") bearing a designation clearly indicating that the funds deposited therein are held in trust for the benefit of the Certificateholders; PROVIDED, HOWEVER, that upon the insolvency of the Qualified Institution where the Sweep Account is maintained, the Sweep Account shall not be permitted to be maintained with such Qualified Institution and upon the insolvency of the Trustee, the Collection Account shall not be that permitted to be maintained with the Trustee. SCHEDULE 1-A sets forth the account number of the Borrower Sweep Account, the account designation of such account and the Borrower will report for Federal, state and local income taxes, the income, if any, represented by the Collection Account.
(b) The Collection Account shall initially be established at ▇▇▇▇▇ Fargo Bank, National Association. ▇▇▇▇▇ Fargo Bank, National Association hereby confirms that it is a national banking association and shall act as a “securities intermediary” (as defined in Section 8-102 name of the UCC) and a “bank” (as defined in Section 9Qualified Institution where the Sweep Account is maintained. SCHEDULE 1-102 of the UCC) hereunder (in such capacities, the “Securities Intermediary”) with respect to the Collection Account and that B sets forth the account number of the Collection Account, the account designation of such account and the name of the institution with which such account is maintained. Pursuant to the terms of the Control Agreement, all funds in the Sweep Account is [***].
(c) will be transferred on a daily basis into the Collection Account pursuant to the wire transfer instructions and at the times set forth on SCHEDULE 1-C. The Collection Account shall be divided into individual subaccounts for each outstanding Series (each, respectively, a “securities account” as defined "COLLECTION SUBACCOUNT" and, collectively, the "COLLECTION SUBACCOUNTS"), each bearing a designation clearly indicating that the funds deposited therein are held in Section 8-501 of the UCC and shall be maintained by the Securities Intermediary as a securities intermediary in the name of the Borrower, subject to the lien of the Program Agent, trust for the benefit of the Secured PartiesTrustee and the Certificateholders of such Series with a depository institution or trust company meeting the criteria provided in the related Supplement. The Securities Intermediary shall treat the Program Agent as the “entitlement holder” (within the meaning of Section 8-102(a)(7) Trustee, on behalf of the UCC) Trust, shall possess all right, title and interest in respect of all “financial assets” (within the meaning of Section 8-102(a)(9) of the UCC) credited funds on deposit from time to the Collection Account;
(d) The Securities Intermediary hereby confirms and agrees that:
(i) the Securities Intermediary shall not change the name or account number of time in the Collection Account without the prior written consent of the Program Agent;
(ii) and in all securities or other property underlying any financial assets (as hereinafter defined) credited to the proceeds thereof. The Collection Account shall be registered in under the name sole dominion and control of the Securities Intermediary, indorsed to the Securities Intermediary or indorsed in blank or credited to another securities account maintained in the name of the Securities Intermediary, and in no case will any financial asset credited to the Collection Account be registered in the name of the Borrower or any other Person, payable to the order of the Borrower or specially indorsed to the Borrower or any other Person, except to the extent the foregoing have been specially indorsed to the Program Agent, Trustee for the benefit of the Secured PartiesInvestor Certificateholders. Neither the Sellers nor the Servicer, nor any Person or entity claiming by, through or under any Seller or the Servicer, shall have any right, title or interest in (except to the extent expressly provided under this Master Trust Agreement or any Supplement), or in blank;
(iii) all property transferred or delivered any right to the Securities Intermediary pursuant to this Agreement will be promptly credited to withdraw any amount from, the Collection Account;
(iv) the Collection Account is an account to which financial assets are or may be credited, and the Securities Intermediary shall, subject to the terms of this Agreement, treat each of the Borrower and the Servicer as entitled to exercise the rights that comprise any financial asset credited to each such account;
(v) the Securities Intermediary shall promptly deliver copies of all statements, confirmations and other correspondence concerning the Collection Account and/or any financial assets credited thereto simultaneously to each of the Servicer (on behalf of the Borrower) and the Program Agent at the address for each set forth on Schedule II to this Agreement; and
(vi) notwithstanding the intent of the parties hereto, to the extent that Collection Account shall be determined to constitute a “deposit account” within the meaning of Section 9-102(a)(29) of the UCC, . Funds in the Collection Account shall not be subject to the exclusive control of the Program Agent, for the benefit of the Secured Parties, and the Securities Intermediary will comply with instructions originated by the Program Agent directing disposition of the funds invested. Funds in any Collection Subaccount may not be invested except as provided in the Collection Account without further consent by the Borrower or the Servicer; provided that, notwithstanding the foregoing, until related Supplement and any earnings resulting from such time as the Securities Intermediary receives a Notice of Exclusive Control (as defined below), the Program Agent hereby authorizes the Securities [***] Confidential information on this page has been omitted and filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Request. Intermediary to honor all withdrawal, payment, transfer or other instructions directing disposition of the funds in the Collection Account received from the Borrower or the Servicer, on its behalf.
(e) The Securities Intermediary hereby agrees that each item of property (including, without limitation, any investment property, financial asset, security, instrument or cash) credited to the Collection Account shall be treated applied as a “financial asset” within the meaning of Section 8-102(a)(9) of the UCCprovided in such Supplement.
(f) Except as otherwise set forth in Section 2.20(g) and (h), the Securities Intermediary will comply with “entitlement orders” (as defined in Section 8-102(a)(8) of the UCC) (“Entitlement Orders”) originated by the Borrower or by the Servicer. Neither the Servicer nor the Borrower shall directly make any withdrawals from the Collection Account.
(g) If at any time the Securities Intermediary shall receive any Entitlement Order from the Program Agent (i.e., an order directing a transfer or redemption of any financial asset in the Collection Account), or any “instruction” (within the meaning of Section 9-104 of the UCC), originated by the Program Agent, the Securities Intermediary shall comply with such Entitlement Order or instruction without further consent by the Borrower, the Servicer or any other Person. Notwithstanding the foregoing, the parties hereto agree that the Securities Intermediary will comply with the following with respect to any Entitlement Order or instruction: (i) until its receipt of a Notice of Exclusive Control (as defined below) with respect to the financial assets in the Collection Account, any cash received into the Collection Account may be invested in Permitted Investments selected by the Borrower or by the Servicer; and (ii) from and after its receipt of a Notice of Exclusive Control (as defined below), with respect to the financial assets in the Collection Account and without further consent of the Borrower, the Servicer or any other Person, any cash received into the Collection Account, may be invested in Permitted Investments selected by the Program Agent, for the benefit of the Secured Parties.
(h) Upon receipt by the Securities Intermediary of a written notice substantially in the form of Exhibit K hereto (a “Notice of Exclusive Control”), the Securities Intermediary will take all Entitlement Orders, instructions or other directions it receives from the Program Agent, on behalf of the Secured Parties, with respect to the Collection Account, without further consent by the Borrower, the Servicer or any other Person, and shall cease complying with Entitlement Orders, instructions or other directions concerning the Collection Account originated by the Borrower, the Servicer or any other Person.
(i) In the event that the Securities Intermediary has or subsequently obtains by agreement, by operation of law or otherwise a security interest in any of the Collection Account or any financial assets, funds, cash or other property credited thereto or any security entitlement with respect thereto, the Securities Intermediary hereby agrees that such security interest shall be subordinate to the security interest of the Program Agent, for the benefit of the Secured Parties. Notwithstanding the preceding sentence, the financial assets, funds, cash or other property credited to any of the Collection Account will not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than the Program Agent, for the benefit of the Secured Parties (except that the Securities Intermediary may set-off (i) all amounts due to the Securities Intermediary in respect of customary fees and expenses for the routine maintenance and operation of the Collection Account, and (ii) the face amount of any checks that have been credited to the Collection Account but are subsequently returned unpaid because of uncollected or insufficient funds).
(j) Regardless of any provision in any other agreement, for purposes of the UCC, New York shall be deemed to be the “bank’s jurisdiction” (within the meaning of Section 9-304 of the UCC) and the “security intermediary’s jurisdiction” (within the meaning of Section 8-110 of the UCC).
Appears in 2 contracts
Sources: Master Trust Agreement (TMM Holdings Sa De Cv), Master Trust Agreement (TMM Holdings)
The Collection Account. (a) On or prior to the Closing Date, the Borrower Paying Agent shall establish (or Administrative Agent, at its option, shall establish or cause to be established) and shall thereafter maintain an Eligible the Collection Account in the name of the Borrower for the purpose of receiving Collections Collections. The Paying Agent shall also establish, for purposes of creating the Disbursement Account and the Reserve Accounts, sub-accounts of the Collection Account (the “Collection Account”)which may be ledger or book entry accounts and not actual accounts) or separate Accounts. The taxpayer identification number associated with the Collection Account, Disbursement Account and Reserve Accounts shall be that of the Borrower Representative and the Borrower Representative (and other applicable Borrowers) will report for Federal, state and local income taxes, the income, if any, represented by the Collection Account, Disbursement Account and Reserve Accounts. The Collection Account, Disbursement Account and Reserve Accounts shall be under the sole dominion and control of the Administrative Agent. All costs and expenses of establishing and maintaining the Collection Account, Disbursement Account and Reserve Accounts shall be paid by the Borrowers.
(b) The Collection Account, Disbursement Account and Reserve Accounts shall initially be established and at ▇▇▇▇▇ Fargo Bank, National Association. ▇▇▇▇▇ Fargo Bank, National Association hereby confirms that it is a national banking association and all times maintained with the Paying Agent which shall act as a “securities intermediary” (as defined in Section 8-102 of the UCC) and a “bank” (as defined in Section 9-102 of the UCC) hereunder (in such capacities, the “Securities Intermediary”) with respect to the Collection Account and Account. In the event that the account number of Paying Agent ceases to be a Qualified Institution, the Administrative Agent shall, within thirty (30) days thereof, appoint a Qualified Institution to be the successor Paying Agent and establish a new Collection Account is [***]at such Qualified Institution.
(c) The Collection Account, Disbursement Account and Reserve Accounts shall each be a “securities account” as defined in Section 8-501 of the UCC and shall be maintained by the Securities Intermediary as a securities intermediary in the name of the BorrowerBorrowers, subject to the lien of the Program Administrative Agent, for the benefit of the Secured Parties. The Securities Intermediary shall treat the Program Administrative Agent as the “entitlement holder” (within the meaning of Section 8-102(a)(7) of the UCC) in respect of all “financial assets” (within the meaning of Section 8-102(a)(9) of the UCC) credited to the Collection Account;
(d) The Securities Intermediary hereby confirms and agrees that:
(i) the Securities Intermediary shall not change the name or account number of the Collection Account, Disbursement Account or Reserve Accounts without the prior written consent of the Program Administrative Agent;
(ii) all securities or other property underlying any financial assets (as hereinafter defined) credited to the Collection Account, Disbursement Account or Reserve Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or indorsed in blank or credited to another securities account maintained in the name of the Securities Intermediary, and in no case will any financial asset credited to the Collection Account, Disbursement Account or Reserve Accounts be registered in the name of the any Borrower or any other Person, payable to the order of the any Borrower or specially indorsed to the any Borrower or any other Person, except to the extent the foregoing have been specially indorsed to the Program Administrative Agent, for the benefit of the Secured Parties, or in blank;
(iii) all property transferred or delivered to the Securities Intermediary pursuant to this Agreement for deposit into the Collection Account, Disbursement Account or Reserve Accounts will be promptly credited to the Collection Account, Disbursement Account or applicable other Account, as applicable;
(iv) the Collection Account, Disbursement Account is an account and Reserve Accounts are accounts to which financial assets are or may be credited, and the Securities Intermediary shall, subject to the terms of this Agreement, treat each of the Borrower and the Servicer Administrative Agent as entitled to exercise the rights that comprise any financial asset credited to each such account;
(v) the Securities Intermediary shall promptly deliver copies of all statements, confirmations and other correspondence concerning the Collection Account, Disbursement Account and Reserve Accounts and/or any financial assets credited thereto simultaneously to each the Administrative Agent and, upon Borrower Representative’s request from time to time so long as no Event of Default exists to the Servicer (on behalf of the Borrower) and the Program Agent Borrower Representative, at the address for each set forth on Schedule II III to this Agreement; and
(vi) notwithstanding the intent of the parties hereto, to the extent that any Collection Account or any Account shall be determined to constitute a “deposit account” within the meaning of Section 9-102(a)(29) of the UCC, the Collection Account, Disbursement Account and Reserve Accounts shall be subject to the exclusive control of the Program Administrative Agent, for the benefit of the Secured Parties, and the Securities Intermediary will comply with instructions originated by the Program Administrative Agent directing disposition of the funds in the Collection Account, Disbursement Account and Reserve Accounts without further consent by the Borrower or the Servicer; provided that, notwithstanding the foregoing, until such time as the Securities Intermediary receives a Notice of Exclusive Control (as defined below), the Program Agent hereby authorizes the Securities [***] Confidential information on this page has been omitted and filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Request. Intermediary to honor all withdrawal, payment, transfer or other instructions directing disposition of the funds in the Collection Account received from the Borrower or the Servicer, on its behalfBorrowers.
(e) The Securities Intermediary hereby agrees that each item of property (including, without limitation, including any investment property, financial asset, security, instrument or cash) credited to the Collection Account, Disbursement Account and Reserve Accounts shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the UCC.
(f) Except as otherwise set forth in Section 2.20(g2.17(g) and (h), the Securities Intermediary will comply with “entitlement orders” (as defined in Section 8-102(a)(8) of the UCC) (“Entitlement Orders”) originated by the Borrower or by the ServicerBorrowers. Neither the Servicer nor the Borrower The Borrowers shall not directly make any withdrawals from the Collection Account, Disbursement Account and Reserve Accounts.
(g) If at any time the Securities Intermediary shall receive any Entitlement Order from the Program Administrative Agent (i.e., an order directing a transfer or redemption of any financial asset in the Collection Account, Disbursement Account or Reserve Accounts), or any “instruction” (within the meaning of Section 9-104 of the UCC), originated by the Program Administrative Agent, the Securities Intermediary shall comply with such Entitlement Order or instruction without further consent by the Borrower, the Servicer Borrowers or any other Person. Notwithstanding the foregoing, the parties hereto agree that the Securities Intermediary will comply with the following with respect to any Entitlement Order or instruction: (i) until its receipt of a Notice of Exclusive Control (as defined below) with respect to the financial assets in the Collection Account, any Any cash received into the Collection Account or Reserve Accounts may be invested in Permitted Investments selected by the Borrower or by the Servicer; Representative, subject to Section 2.06(e) and (ii) from and after its receipt of a Notice of Exclusive Control (as defined below), with respect to the financial assets in the Collection Account and without further consent of the Borrower, the Servicer or any other Person, any cash received into the Collection Account, may be invested in Permitted Investments selected by the Program Agent, for the benefit of the Secured PartiesSection 6.13.
(h) Upon receipt by the Securities Intermediary of a written notice substantially in the form of Exhibit K hereto (a “Notice of Exclusive Control”), the Securities Intermediary will take all Entitlement Orders, instructions or other directions it receives from the Program Agent, on behalf of the Secured Parties, with respect to the Collection Account, without further consent by the Borrower, the Servicer or any other Person, and shall cease complying with Entitlement Orders, instructions or other directions concerning the Collection Account originated by the Borrower, the Servicer or any other Person.
(i) In the event that the Securities Intermediary has or subsequently obtains by agreement, by operation of law or otherwise a security interest in any of the Collection Account, Disbursement Account or Reserve Accounts or any financial assets, funds, cash or other property credited thereto or any security entitlement with respect thereto, the Securities Intermediary hereby agrees that such security interest shall be subordinate to the security interest of the Program Administrative Agent, for the benefit of the Secured Parties. Notwithstanding the preceding sentence, the financial assets, funds, cash or other property credited to any of the Collection Account, Disbursement Account or Reserve Accounts will not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than the Program Administrative Agent, for the benefit of the Secured Parties (except that the Securities Intermediary may set-off (i) all amounts due to the Securities Intermediary in respect of customary fees and expenses for the routine maintenance and operation of the Collection Account, Disbursement Account and Reserve Accounts, and (ii) the face amount of any checks that have been credited to the Collection Account but are subsequently returned unpaid because of uncollected or insufficient funds).
(ji) Regardless of any provision in any other agreement, for purposes of the UCC, New York shall be deemed to be the “bank’s jurisdiction” (within the meaning of Section 9-304 of the UCC) and the “security intermediary’s jurisdiction” (within the meaning of Section 8-110 of the UCC).
(j) The insufficiency of funds on deposit in the Collection Account, Disbursement Account or Reserve Accounts shall not relieve the Loan Parties from the obligation to make any payments, as and when due pursuant to this Agreement and the other Loan Documents, and such obligations shall be separate and independent, and not conditioned on any event or circumstance whatsoever.
Appears in 2 contracts
Sources: Loan Agreement (Invitation Homes Inc.), Loan Agreement (Invitation Homes Inc.)
The Collection Account. (a) On or prior to the Closing Date, the Borrower Paying Agent shall establish (or Administrative Agent, at its option, shall establish or cause to be established) and shall thereafter maintain an Eligible the Collection Account in the name of the Borrower for the purpose of receiving Collections Collections. The Paying Agent shall also establish, for purposes of creating the Disbursement Account and the Reserve Accounts, sub-accounts of the Collection Account (the “Collection Account”)which may be ledger or book entry accounts and not actual accounts) or separate Accounts. The taxpayer identification number associated with the Collection Account, Disbursement Account and Reserve Accounts shall be that of the Borrower Representative and the Borrower Representative (and other applicable Borrowers) will report for Federal, state and local income taxes, the income, if any, represented by the Collection Account, Disbursement Account and Reserve Accounts. The Collection Account, Disbursement Account and Reserve Accounts shall be under the sole dominion and control of the Administrative Agent. All costs and expenses of establishing and maintaining the Collection Account, Disbursement Account and Reserve Accounts shall be paid by the Borrowers.
(b) The Collection Account, Disbursement Account and Reserve Accounts shall initially be established and at ▇▇▇▇▇ Fargo Bank, National Association. ▇▇▇▇▇ Fargo Bank, National Association hereby confirms that it is a national banking association and all times maintained with the Paying Agent which shall act as a “securities intermediary” (as defined in Section 8-102 of the UCC) and a “bank” (as defined in Section 9-102 of the UCC) hereunder (in such capacities, the “Securities Intermediary”) with respect to the Collection Account and Account. In the event that the account number of Paying Agent ceases to be a Qualified Institution, the Administrative Agent shall, within thirty (30) days thereof, appoint a Qualified Institution to be the successor paying agent and establish a new Collection Account is [***]at such Qualified Institution.
(c) The Collection Account, Disbursement Account and Reserve Accounts shall each be a “securities account” as defined in Section 8-501 of the UCC and shall be maintained by the Securities Intermediary as a securities intermediary in the name of the BorrowerBorrowers, subject to the lien of the Program Administrative Agent, for the benefit of the Secured Parties. The Securities Intermediary shall treat the Program Administrative Agent as the “entitlement holder” (within the meaning of Section 8-102(a)(7) of the UCC) in respect of all “financial assets” (within the meaning of Section 8-102(a)(9) of the UCC) credited to the Collection Account;
(d) The Securities Intermediary hereby confirms and agrees that:
(i) the Securities Intermediary shall not change the name or account number of the Collection Account, Disbursement Account or Reserve Accounts without the prior written consent of the Program Administrative Agent;
(ii) all securities or other property underlying any financial assets (as hereinafter defined) credited to the Collection Account, Disbursement Account or Reserve Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or indorsed in blank or credited to another securities account maintained in the name of the Securities Intermediary, and in no case will any financial asset credited to the Collection Account, Disbursement Account or Reserve Accounts be registered in the name of the any Borrower or any other Person, payable to the order of the any Borrower or specially indorsed to the any Borrower or any other Person, except to the extent the foregoing have been specially indorsed to the Program Administrative Agent, for the benefit of the Secured Parties, or in blank;
(iii) all property transferred or delivered to the Securities Intermediary pursuant to this Agreement for deposit into the Collection Account, Disbursement Account or Reserve Accounts will be promptly credited to the Collection Account, Disbursement Account or applicable other Account, as applicable;
(iv) the Collection Account, Disbursement Account is an account and Reserve Accounts are accounts to which financial assets are or may be credited, and the Securities Intermediary shall, subject to the terms of this Agreement, treat each of the Borrower and the Servicer Administrative Agent as entitled to exercise the rights that comprise any financial asset credited to each such account;
(v) the Securities Intermediary shall promptly deliver copies of all statements, confirmations and other correspondence concerning the Collection Account, Disbursement Account and Reserve Accounts and/or any financial assets credited thereto simultaneously to each the Administrative Agent and, upon Borrower Representative’s request from time to time so long as no Event of Default exists to the Servicer (on behalf of the Borrower) and the Program Agent Borrower Representative, at the address for each set forth on Schedule II III to this Agreement; and
(vi) notwithstanding the intent of the parties hereto, to the extent that any Collection Account or any Account shall be determined to constitute a “deposit account” within the meaning of Section 9-102(a)(29) of the UCC, the Collection Account, Disbursement Account and Reserve Accounts shall be subject to the exclusive control of the Program Administrative Agent, for the benefit of the Secured Parties, and the Securities Intermediary will comply with instructions originated by the Program Administrative Agent directing disposition of the funds in the Collection Account, Disbursement Account and Reserve Accounts without further consent by the Borrower or the Servicer; provided that, notwithstanding the foregoing, until such time as the Securities Intermediary receives a Notice of Exclusive Control (as defined below), the Program Agent hereby authorizes the Securities [***] Confidential information on this page has been omitted and filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Request. Intermediary to honor all withdrawal, payment, transfer or other instructions directing disposition of the funds in the Collection Account received from the Borrower or the Servicer, on its behalfBorrowers.
(e) The Securities Intermediary hereby agrees that each item of property (including, without limitation, including any investment property, financial asset, security, instrument or cash) credited to the Collection Account, Disbursement Account and Reserve Accounts shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the UCC.
(f) Except as otherwise set forth in Section 2.20(g2.17(g) and (h), the Securities Intermediary will comply with “entitlement orders” (as defined in Section 8-102(a)(8) of the UCC) (“Entitlement Orders”) originated by the Borrower or by the ServicerBorrowers. Neither the Servicer nor the Borrower The Borrowers shall not directly make any withdrawals from the Collection Account, Disbursement Account and Reserve Accounts.
(g) If at any time the Securities Intermediary shall receive any Entitlement Order from the Program Administrative Agent (i.e., an order directing a transfer or redemption of any financial asset in the Collection Account, Disbursement Account or Reserve Accounts), or any “instruction” (within the meaning of Section 9-104 of the UCC), originated by the Program Administrative Agent, the Securities Intermediary shall comply with such Entitlement Order or instruction without further consent by the Borrower, the Servicer Borrowers or any other Person. Notwithstanding the foregoing, the parties hereto agree that the Securities Intermediary will comply with the following with respect to any Entitlement Order or instruction: (i) until its receipt of a Notice of Exclusive Control (as defined below) with respect to the financial assets in the Collection Account, any Any cash received into the Collection Account or Reserve Accounts may be invested in Permitted Investments selected by the Borrower or by the Servicer; Representative, subject to Section 2.06(e) and (ii) from and after its receipt of a Notice of Exclusive Control (as defined below), with respect to the financial assets in the Collection Account and without further consent of the Borrower, the Servicer or any other Person, any cash received into the Collection Account, may be invested in Permitted Investments selected by the Program Agent, for the benefit of the Secured PartiesSection 6.13.
(h) Upon receipt by the Securities Intermediary of a written notice substantially in the form of Exhibit K hereto (a “Notice of Exclusive Control”), the Securities Intermediary will take all Entitlement Orders, instructions or other directions it receives from the Program Agent, on behalf of the Secured Parties, with respect to the Collection Account, without further consent by the Borrower, the Servicer or any other Person, and shall cease complying with Entitlement Orders, instructions or other directions concerning the Collection Account originated by the Borrower, the Servicer or any other Person.
(i) In the event that the Securities Intermediary has or subsequently obtains by agreement, by operation of law or otherwise a security interest in any of the Collection Account, Disbursement Account or Reserve Accounts or any financial assets, funds, cash or other property credited thereto or any security entitlement with respect thereto, the Securities Intermediary hereby agrees that such security interest shall be subordinate to the security interest of the Program Administrative Agent, for the benefit of the Secured Parties. Notwithstanding the preceding sentence, the financial assets, funds, cash or other property credited to any of the Collection Account, Disbursement Account or Reserve Accounts will not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than the Program Administrative Agent, for the benefit of the Secured Parties (except that the Securities Intermediary may set-off (i) all amounts due to the Securities Intermediary in respect of customary fees and expenses for the routine maintenance and operation of the Collection Account, Disbursement Account and Reserve Accounts, and (ii) the face amount of any checks that have been credited to the Collection Account but are subsequently returned unpaid because of uncollected or insufficient funds).
(ji) Regardless of any provision in any other agreement, for purposes of the UCC, New York shall be deemed to be the “bank’s jurisdiction” (within the meaning of Section 9-304 of the UCC) and the “security intermediary’s jurisdiction” (within the meaning of Section 8-110 of the UCC).
(j) The insufficiency of funds on deposit in the Collection Account, Disbursement Account or Reserve Accounts shall not relieve the Loan Parties from the obligation to make any payments, as and when due pursuant to this Agreement and the other Loan Documents, and such obligations shall be separate and independent, and not conditioned on any event or circumstance whatsoever.
Appears in 1 contract
The Collection Account. (a) On or prior to the Closing Date, the Borrower shall establish and shall thereafter maintain an Eligible Account a segregated account in the name of the Borrower for the purpose of receiving Collections (the “Collection Account”). The taxpayer identification number associated with the Collection Account shall be that of the Borrower and the Borrower will report for Federal, state and local income taxes, the income, if any, represented by the Collection Account.
(b) The Collection Account shall initially be established and at ▇▇▇▇▇ Fargo Bank, National Association. ▇▇▇▇▇ Fargo Bank, National Association hereby confirms that it is a national banking association and all times maintained with the Paying Agent which shall act as a “securities intermediary” (as defined in Section 8-102 of the UCC) and a “bank” (as defined in Section 9-102 of the UCC) hereunder (in such capacities, the “Securities Intermediary”) with respect to the Collection Account and Account. W▇▇▇▇ Fargo, as initial Paying Agent, hereby confirms that the account number of the Collection Account is [***]4▇▇▇▇▇▇▇. In the event that the Paying Agent ceases to be a Qualified Institution, the Borrower shall, within thirty (30) days thereof, appoint a Qualified Institution to be the successor Paying Agent and establish a new Collection Account at such Qualified Institution.
(c) The Collection Account shall be a “securities account” as defined in Section 8-501 of the UCC and shall be maintained by the Securities Intermediary as a securities intermediary in the name of the Borrower, subject to the lien of the Program Administrative Agent, for the benefit of the Secured Parties. The Securities Intermediary shall treat the Program Administrative Agent as the “entitlement holder” (within the meaning of Section 8-102(a)(7) of the UCC) in respect of all “financial assets” (within the meaning of Section 8-102(a)(9) of the UCC) credited to the Collection Account;
(d) The Securities Intermediary hereby confirms and agrees that:
(i) the Securities Intermediary shall not change the name or account number of the Collection Account without the prior written consent of the Program Administrative Agent;
(ii) all securities or other property underlying any financial assets (as hereinafter defined) credited to the Collection Account shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or indorsed in blank or credited to another securities account maintained in the name of the Securities Intermediary, and in no case will any financial asset credited to the Collection Account be registered in the name of the Borrower or any other Person, payable to the order of the Borrower or specially indorsed to the Borrower or any other Person, except to the extent the foregoing have been specially indorsed to the Program Administrative Agent, for the benefit of the Secured Parties, or in blank;
(iii) all property transferred or delivered to the Securities Intermediary pursuant to this Agreement will be promptly credited to the Collection Account;
(iv) the Collection Account is an account to which financial assets are or may be credited, and the Securities Intermediary shall, subject to the terms of this Agreement, treat each of the Borrower and the Servicer as entitled to exercise the rights that comprise any financial asset credited to each such account;
(v) the Securities Intermediary shall promptly deliver copies of all statements, confirmations and other correspondence concerning the Collection Account and/or any financial assets credited thereto simultaneously to each of the Servicer (on behalf of the Borrower) and the Program Administrative Agent at the address for each set forth on Schedule II III to this Agreement; and
(vi) notwithstanding the intent of the parties hereto, to the extent that Collection Account shall be determined to constitute a “deposit account” within the meaning of Section 9-102(a)(29) of the UCC, the Collection Account shall be subject to the exclusive control of the Program Administrative Agent, for the benefit of the Secured Parties, and the Securities Intermediary will comply with instructions originated by the Program Administrative Agent directing disposition of the funds in the Collection Account without further consent by the Borrower or the Servicer; provided that, notwithstanding the foregoing, until such time as the Securities Intermediary receives a Notice of Exclusive Control (as defined below), the Program Agent hereby authorizes the Securities [***] Confidential information on this page has been omitted and filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Request. Intermediary to honor all withdrawal, payment, transfer or other instructions directing disposition of the funds in the Collection Account received from the Borrower or the Servicer, on its behalf.
(e) The Securities Intermediary hereby agrees that each item of property (including, without limitation, including any investment property, financial asset, security, instrument or cash) credited to the Collection Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the UCC.
(f) Except as otherwise set forth in Section 2.20(g2.16(g) and (h), the Securities Intermediary will comply with “entitlement orders” (as defined in Section 8-102(a)(8) of the UCC) (“Entitlement UCC)(“Entitlement Orders”) originated by the Borrower or by the Servicer. Neither the Servicer nor the The Borrower shall not directly make any withdrawals from the Collection Account.
(g) If at any time the Securities Intermediary shall receive any Entitlement Order from the Program Administrative Agent (i.e., an order directing a transfer or redemption of any financial asset in the Collection Account), or any “instruction” (within the meaning of Section 9-104 of the UCC), originated by the Program Administrative Agent, the Securities Intermediary shall comply with such Entitlement Order or instruction without further consent by the Borrower, the Servicer or any other Person. Notwithstanding the foregoing, the parties hereto agree that the Securities Intermediary will comply with the following with respect to any Entitlement Order or instruction: (i) until its receipt of a Notice of Exclusive Control (as defined below) with respect to the financial assets in the Collection Account, any cash received into the Collection Account may be invested in Permitted Investments selected by the Borrower or by the Servicer; and (ii) from and after its receipt of a Notice of Exclusive Control (as defined below), with respect to the financial assets in the Collection Account and without further consent of the Borrower, the Servicer or any other Person, any cash received into the Collection Account, may be invested in Permitted Investments selected by the Program Administrative Agent, for the benefit of the Secured Parties.
(h) Upon receipt by the Securities Intermediary of a written notice substantially in the form of Exhibit K M hereto (a “Notice of Exclusive Control”), the Securities Intermediary will take all Entitlement Orders, instructions or other directions it receives from the Program Administrative Agent, on behalf of the Secured Parties, with respect to the Collection Account and the disposition of funds in the Collection Account, without further consent by the Borrower, the Servicer or any other Person, and shall cease complying with Entitlement Orders, instructions or other directions concerning the Collection Account originated by the Borrower, the Servicer or any other Person. Notwithstanding the foregoing, promptly following receipt by the Administrative Agent of a written notice from the Servicer identifying amounts on deposit in the Collection Account as constituting Miscellaneous Payments, the Administrative Agent will issue an Entitlement Order to the Securities Intermediary to release such Miscellaneous Payments to the Servicer.
(i) In the event that the Securities Intermediary has or subsequently obtains by agreement, by operation of law or otherwise a security interest in any of the Collection Account or any financial assets, funds, cash or other property credited thereto or any security entitlement with respect thereto, the Securities Intermediary hereby agrees that such security interest shall be subordinate to the security interest of the Program Administrative Agent, for the benefit of the Secured Parties. Notwithstanding the preceding sentence, the financial assets, funds, cash or other property credited to any of the Collection Account will not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than the Program Administrative Agent, for the benefit of the Secured Parties (except that the Securities Intermediary may set-off (i) all amounts due to the Securities Intermediary in respect of customary fees and expenses for the routine maintenance and operation of the Collection Account, and (ii) the face amount of any checks that have been credited to the Collection Account but are subsequently returned unpaid because of uncollected or insufficient funds).
(j) Regardless of any provision in any other agreement, for purposes of the UCC, New York shall be deemed to be the “bank’s jurisdiction” (within the meaning of Section 9-304 of the UCC) and the “security intermediary’s jurisdiction” (within the meaning of Section 8-110 of the UCC).
Appears in 1 contract
Sources: Receivables Loan Agreement (Hilton Grand Vacations Inc.)
The Collection Account. (a) On or prior to the Closing Date, the Borrower shall establish and shall thereafter maintain an Eligible Account in the name of the Borrower for the purpose of receiving Collections (the “Collection Account”). The taxpayer identification number associated with the Collection Account shall be that of the Borrower and the Borrower will report for Federal, state and local income taxes, the income, if any, represented by the Collection Account.
(b) The Collection Account shall initially be established at ▇▇▇▇▇ Fargo Bank, National Association. ▇▇▇▇▇ Fargo Bank, National Association hereby confirms that it is a national banking association and shall act as a “securities intermediary” (as defined in Section 8-102 of the UCC) and a “bank” (as defined in Section 9-102 of the UCC) hereunder (in such capacities, the “Securities Intermediary”) with respect to the Collection Account and that the account number of the Collection Account is [***].
(c) The Collection Account shall be a “securities account” as defined in Section 8-501 of the UCC and shall be maintained by the Securities Intermediary as a securities intermediary in the name of the Borrower, subject to the lien of the Program Agent, for the benefit of the Secured Parties. The Securities Intermediary shall treat the Program Agent as the “entitlement holder” (within the meaning of Section 8-102(a)(7) of the UCC) in respect of all “financial assets” (within the meaning of Section 8-102(a)(9) of the UCC) credited to the Collection Account;
(d) The Securities Intermediary hereby confirms and agrees that:
(i) the Securities Intermediary shall not change the name or account number of the Collection Account without the prior written consent of the Program Agent;
(ii) all securities or other property underlying any financial assets (as hereinafter defined) credited to the Collection Account shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or indorsed in blank or credited to another securities account maintained in the name of the Securities Intermediary, and in no case will any financial asset credited to the Collection Account be registered in the name of the Borrower or any other Person, payable to the order of the Borrower or specially indorsed to the Borrower or any other Person, except to the extent the foregoing have been specially indorsed to the Program Agent, for the benefit of the Secured Parties, or in blank;; * Confidential information on this page has been omitted and filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Request.
(iii) all property transferred or delivered to the Securities Intermediary pursuant to this Agreement will be promptly credited to the Collection Account;
(iv) the Collection Account is an account to which financial assets are or may be credited, and the Securities Intermediary shall, subject to the terms of this Agreement, treat each of the Borrower and the Servicer as entitled to exercise the rights that comprise any financial asset credited to each such account;
(v) the Securities Intermediary shall promptly deliver copies of all statements, confirmations and other correspondence concerning the Collection Account and/or any financial assets credited thereto simultaneously to each of the Servicer (on behalf of the Borrower) and the Program Agent at the address for each set forth on Schedule II to this Agreement; and
(vi) notwithstanding the intent of the parties hereto, to the extent that Collection Account shall be determined to constitute a “deposit account” within the meaning of Section 9-102(a)(29) of the UCC, the Collection Account shall be subject to the exclusive control of the Program Agent, for the benefit of the Secured Parties, and the Securities Intermediary will comply with instructions originated by the Program Agent directing disposition of the funds in the Collection Account without further consent by the Borrower or the Servicer; provided that, notwithstanding the foregoing, until such time as the Securities Intermediary receives a Notice of Exclusive Control (as defined below), the Program Agent hereby authorizes the Securities [***] Confidential information on this page has been omitted and filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Request. Intermediary to honor all withdrawal, payment, transfer or other instructions directing disposition of the funds in the Collection Account received from the Borrower or the Servicer, on its behalf.
(e) The Securities Intermediary hereby agrees that each item of property (including, without limitation, any investment property, financial asset, security, instrument or cash) credited to the Collection Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the UCC.
(f) Except as otherwise set forth in Section 2.20(g) and (h), the Securities Intermediary will comply with “entitlement orders” (as defined in Section 8-102(a)(8) of the UCC) (“Entitlement Orders”) originated by the Borrower or by the Servicer. Neither the Servicer nor the Borrower shall directly make any withdrawals from the Collection Account.
(g) If at any time the Securities Intermediary shall receive any Entitlement Order from the Program Agent (i.e., an order directing a transfer or redemption of any financial asset in the Collection Account), or any “instruction” (within the meaning of Section 9-104 of the UCC), originated by the Program Agent, the Securities Intermediary shall comply with such Entitlement Order or instruction without further consent by the Borrower, the Servicer or any other Person. Notwithstanding the foregoing, the parties hereto agree that the Securities Intermediary will comply with the following with respect to any Entitlement Order or instruction: (i) until its receipt of a Notice of Exclusive Control (as defined below) with respect to the financial assets in the Collection Account, any cash received into the Collection Account may be invested in Permitted Investments selected by the Borrower or by the Servicer; and (ii) from and after its receipt of a Notice of Exclusive Control (as defined below), with respect to the financial assets in the Collection Account and without further consent of the Borrower, the Servicer or any other Person, any cash received into the Collection Account, may be invested in Permitted Investments selected by the Program Agent, for the benefit of the Secured Parties.
(h) Upon receipt by the Securities Intermediary of a written notice substantially in the form of Exhibit K hereto (a “Notice of Exclusive Control”), the Securities Intermediary will take all Entitlement Orders, instructions or other directions it receives from the Program Agent, on behalf of the Secured Parties, with respect to the Collection Account, without further consent by the Borrower, the Servicer or any other Person, and shall cease complying with Entitlement Orders, instructions or other directions concerning the Collection Account originated by the Borrower, the Servicer or any other Person.
(i) In the event that the Securities Intermediary has or subsequently obtains by agreement, by operation of law or otherwise a security interest in any of the Collection Account or any financial assets, funds, cash or other property credited thereto or any security entitlement with respect thereto, the Securities Intermediary hereby agrees that such security interest shall be subordinate to the security interest of the Program Agent, for the benefit of the Secured Parties. Notwithstanding the preceding sentence, the financial assets, funds, cash or other property credited to any of the Collection Account will not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than the Program Agent, for the benefit of the Secured Parties (except that the Securities Intermediary may set-off (i) all amounts due to the Securities Intermediary in respect of customary fees and expenses for the routine maintenance and operation of the Collection Account, and (ii) the face amount of any checks that have been credited to the Collection Account but are subsequently returned unpaid because of uncollected or insufficient funds).
(j) Regardless of any provision in any other agreement, for purposes of the UCC, New York shall be deemed to be the “bank’s jurisdiction” (within the meaning of Section 9-304 of the UCC) and the “security intermediary’s jurisdiction” (within the meaning of Section 8-110 of the UCC).
Appears in 1 contract
The Collection Account. (a) On or prior to the Closing Datedate hereof, the Borrower shall establish and shall thereafter maintain an Eligible Account in the name of the Borrower for the purpose of receiving Collections (the “Collection Account”). The taxpayer identification number associated with the Collection Account shall be that of the Borrower and the Borrower will report for Federal, state and local income taxes, the income, if any, represented by the Collection Account.
(b) The Collection Account shall initially be established at ▇▇▇▇▇ Fargo Bank, National Association. ▇▇▇▇▇ Fargo Bank, National Association hereby confirms that it is a national banking association and shall act as a “securities intermediary” (as defined in Section 8-102 of the UCC) and a “bank” (as defined in Section 9-102 of the UCC) hereunder (in such capacities, the “Securities Intermediary”) with respect to the Collection Account and that the account number of the Collection Account is [***]. * Confidential information on this page has been omitted and filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Request.
(c) The Collection Account shall be a “securities account” as defined in Section 8-8- 501 of the UCC and shall be maintained by the Securities Intermediary as a securities intermediary in the name of the Borrower, subject to the lien of the Program AgentLender, for the benefit of the Secured Parties. The Securities Intermediary shall treat the Program Agent Lender as the “entitlement holder” (within the meaning of Section 8-102(a)(7) of the UCC) in respect of all “financial assets” (within the meaning of Section 8-102(a)(9) of the UCC) credited to the Collection Account;
(d) The Securities Intermediary hereby confirms and agrees that:
(i) the Securities Intermediary shall not change the name or account number of the Collection Account without the prior written consent of the Program AgentLender;
(ii) all securities or other property underlying any financial assets (as hereinafter defined) credited to the Collection Account shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or indorsed in blank or credited to another securities account maintained in the name of the Securities Intermediary, and in no case will any financial asset credited to the Collection Account be registered in the name of the Borrower or any other Person, payable to the order of the Borrower or specially indorsed to the Borrower or any other Person, except to the extent the foregoing have been specially indorsed to the Program AgentLender, for the benefit of the Secured Parties, or in blank;
(iii) all property transferred or delivered to the Securities Intermediary pursuant to this Agreement will be promptly credited to the Collection Account;
(iv) the Collection Account is an account to which financial assets are or may be credited, and the Securities Intermediary shall, subject to the terms of this Agreement, treat each of the Borrower and the Servicer as entitled to exercise the rights that comprise any financial asset credited to each such account;
(v) the Securities Intermediary shall promptly deliver copies of all statements, confirmations and other correspondence concerning the Collection Account and/or any financial assets credited thereto simultaneously to each of the Servicer (on behalf of the Borrower) and the Program Agent Lender at the address for each set forth on Schedule II to this Agreement; and
(vi) notwithstanding the intent of the parties hereto, to the extent that Collection Account shall be determined to constitute a “deposit account” within the meaning of Section 9-102(a)(29) of the UCC, the Collection Account shall be subject to the exclusive control of the Program AgentLender, for the benefit of the Secured Parties, and the Securities Intermediary will comply with instructions originated by the Program Agent Lender directing disposition of the funds in the Collection Account without further consent by the Borrower or the Servicer; provided that, notwithstanding the foregoing, until such time as the Securities Intermediary receives a Notice of Exclusive Control (as defined below), the Program Agent Lender hereby authorizes the Securities [***] Confidential information on this page has been omitted and filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Request. Intermediary to honor all withdrawal, payment, transfer or other instructions directing disposition of the funds in the Collection Account received from the Borrower or the Servicer, on its behalf.
(e) The Securities Intermediary hereby agrees that each item of property (including, without limitation, any investment property, financial asset, security, instrument or cash) credited to the Collection Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the UCC.
(f) Except as otherwise set forth in Section 2.20(g) and (h), the Securities Intermediary will comply with “entitlement orders” (as defined in Section 8-102(a)(8) of the UCC) (“Entitlement Orders”) originated by the Borrower or by the Servicer. Neither the Servicer nor the Borrower shall directly make any withdrawals from the Collection Account.
(g) If at any time the Securities Intermediary shall receive any Entitlement Order from the Program Agent Lender (i.e., an order directing a transfer or redemption of any financial asset in the Collection Account), or any “instruction” (within the meaning of Section 9-104 of the UCC), originated by the Program AgentLender, the Securities Intermediary shall comply with such Entitlement Order or instruction without further consent by the Borrower, the Servicer or any other Person. Notwithstanding the foregoing, the parties hereto agree that the Securities Intermediary will comply with the following with respect to any Entitlement Order or instruction: (i) until its receipt of a Notice of Exclusive Control (as defined below) with respect to the financial assets in the Collection Account, any cash received into the Collection Account may be invested in Permitted Investments selected by the Borrower or by the Servicer; and (ii) from and after its receipt of a Notice of Exclusive Control (as defined below), with respect to the financial assets in the Collection Account and without further consent of the Borrower, the Servicer or any other Person, any cash received into the Collection Account, may be invested in Permitted Investments selected by the Program AgentLender, for the benefit of the Secured Parties.
(h) Upon receipt by the Securities Intermediary of a written notice substantially in the form of Exhibit K I hereto (a “Notice of Exclusive Control”), the Securities Intermediary will take all Entitlement Orders, instructions or other directions it receives from the Program AgentLender, on behalf of the Secured Parties, with respect to the Collection Account, without further consent by the Borrower, the Servicer or any other Person, and shall cease complying with Entitlement Orders, instructions or other directions concerning the Collection Account originated by the Borrower, the Servicer or any other Person.
(i) In the event that the Securities Intermediary has or subsequently obtains by agreement, by operation of law or otherwise a security interest in any of the Collection Account or any financial assets, funds, cash or other property credited thereto or any security entitlement with respect thereto, the Securities Intermediary hereby agrees that such security interest shall be subordinate to the security interest of the Program AgentLender, for the benefit of the Secured Parties. Notwithstanding the preceding sentence, the financial assets, funds, cash or other property credited to any of the Collection Account will not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than the Program AgentLender, for the benefit of the Secured Parties (except that the Securities Intermediary may set-off (i) all amounts due to the Securities Intermediary in respect of customary fees and expenses for the routine maintenance and operation of the Collection Account, and (ii) the face amount of any checks that have been credited to the Collection Account but are subsequently returned unpaid because of uncollected or insufficient funds).
(j) Regardless of any provision in any other agreement, for purposes of the UCC, New York shall be deemed to be the “bank’s jurisdiction” (within the meaning of Section 9-304 of the UCC) and the “security intermediary’s jurisdiction” (within the meaning of Section 8-110 of the UCC).
Appears in 1 contract
The Collection Account.
(a) On or prior to the Closing Date, the Borrower Paying Agent shall establish and shall thereafter maintain an Eligible maintain, at the Securities Intermediary Account in Bank, the name of the Borrower Collection Account for the purpose of receiving Collections Collections. The Paying Agent shall also establish and maintain, at the Securities Intermediary Account Bank, the Disbursement Account and the Reserve Accounts, which may be sub-accounts of the Collection Account (the “Collection Account”)i.e., ledger or book entry accounts and not actual accounts) or separate Accounts. The taxpayer identification number associated with the Collection Account, the Disbursement Account and each Reserve Account shall be that of the Borrower Representative and the Borrower Representative (and other applicable Borrowers) will report for Federalfederal, state and local income taxes, as applicable, the income, if any, represented by the Collection Account., the Disbursement Account and each Reserve Account. The Collection Account, the Disbursement Account and the Reserve Accounts shall be under the sole dominion and control of the Administrative Agent. All costs and expenses of establishing and maintaining the Collection Account, the Disbursement Account and each Reserve Account shall be paid by the Borrowers. For the avoidance of doubt, the Paying Agent (including in its capacity as the Securities Intermediary) shall not be responsible for reviewing and reconciling the Collection Account, the Disbursement Account or any Reserve Account.
(b) The Collection Account, the Disbursement Account and each Reserve Account shall initially be established and at ▇▇▇▇▇ Fargo Bankall times maintained by the Securities Intermediary, National Association. ▇▇▇▇▇ Fargo Bank, National Association hereby confirms that it is a national banking association and which shall act as a “securities intermediary” (as defined in Section 8-102 of the UCC) hereunder and a “bank” (as defined in Section 9-102 of under the UCC) hereunder (in such capacities, the “Securities Intermediary”) Account Control Agreement with respect to the Collection Account, the Disbursement Account and the Reserve Accounts. In the event that the account number of Securities Intermediary Account Bank ceases to be a Qualified Institution, the Securities Intermediary shall, within thirty (30) days thereof, establish a new Collection Account, a new Disbursement Account is [***].and new Reserve Accounts, as applicable, at a Qualified Institution (and the Securities Intermediary shall promptly transfer, or cause to be transferred, all amounts in the then existing Collection Account, Disbursement Account and Reserve Accounts, as applicable, to such new accounts).
(c) The Collection Account, the Disbursement Account, and each Reserve Account shall each be a “securities account” as defined in Section 8-501 of the UCC and shall be maintained by the Securities Intermediary as a securities intermediary shall cause each such account to be maintained in the name of the BorrowerBorrower Representative, subject to the lien of the Program Administrative Agent, for the benefit of the Secured Parties. The Securities Intermediary shall (and agrees to cause the Securities Intermediary Account Bank to) treat the Program Agent Borrower Representative as the “entitlement holder” (within the meaning of Section 8-102(a)(7) of the UCC) under the Securities Account Control Agreement in respect of all “financial assets” (within the meaning of Section 8-102(a)(9) of the UCC) credited to the Collection Account;, Disbursement Account, and any Reserve Account.
(d) The Securities Intermediary hereby confirms and agrees that:
(i) insufficiency of funds on deposit in the Securities Intermediary Collection Account, the Disbursement Account or any Reserve Account shall not change relieve the name or account number of Borrowers from the Collection Account without the prior written consent of the Program Agent;
(ii) all securities or other property underlying obligation to make any financial assets (payments, as hereinafter defined) credited to the Collection Account shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or indorsed in blank or credited to another securities account maintained in the name of the Securities Intermediary, and in no case will any financial asset credited to the Collection Account be registered in the name of the Borrower or any other Person, payable to the order of the Borrower or specially indorsed to the Borrower or any other Person, except to the extent the foregoing have been specially indorsed to the Program Agent, for the benefit of the Secured Parties, or in blank;
(iii) all property transferred or delivered to the Securities Intermediary when due pursuant to this Agreement will be promptly credited to and the Collection Account;
(iv) the Collection Account is an account to which financial assets are or may be creditedother Loan Documents, and the Securities Intermediary shall, subject to the terms of this Agreement, treat each of the Borrower and the Servicer as entitled to exercise the rights that comprise any financial asset credited to each such account;
(v) the Securities Intermediary shall promptly deliver copies of all statements, confirmations and other correspondence concerning the Collection Account and/or any financial assets credited thereto simultaneously to each of the Servicer (on behalf of the Borrower) and the Program Agent at the address for each set forth on Schedule II to this Agreement; and
(vi) notwithstanding the intent of the parties hereto, to the extent that Collection Account obligations shall be determined to constitute a “deposit account” within the meaning of Section 9-102(a)(29) of the UCC, the Collection Account shall be subject to the exclusive control of the Program Agent, for the benefit of the Secured Partiesseparate and independent, and the Securities Intermediary will comply with instructions originated by the Program Agent directing disposition of the funds in the Collection Account without further consent by the Borrower not conditioned on any event or the Servicer; provided that, notwithstanding the foregoing, until such time as the Securities Intermediary receives a Notice of Exclusive Control (as defined below), the Program Agent hereby authorizes the Securities [***] Confidential information on this page has been omitted and filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Requestcircumstance whatsoever. Intermediary to honor all withdrawal, payment, transfer or other instructions directing disposition of the funds in the Collection Account received from the Borrower or the Servicer, on its behalf.
(e) The Securities Intermediary hereby agrees that each item rights and protections of property (includingthe Paying Agent hereunder, without limitationincluding the right to indemnification, any investment propertyshall apply, financial assetmutatis mutandis, security, instrument or cash) credited to the Collection Account shall be treated Paying Agent in its capacity as a “financial asset” within the meaning of Section 8-102(a)(9) of the UCC.
(f) Except as otherwise set forth in Section 2.20(g) and (h), the Securities Intermediary will comply with “entitlement orders” (as defined in Section 8-102(a)(8) of the UCC) (“Entitlement Orders”) originated by the Borrower or by the Servicer. Neither the Servicer nor the Borrower shall directly make any withdrawals from the Collection Account.
(g) If at any time under the Securities Intermediary shall receive any Entitlement Order from the Program Agent (i.e., an order directing a transfer or redemption of any financial asset in the Collection Account), or any “instruction” (within the meaning of Section 9-104 of the UCC), originated by the Program Agent, the Securities Intermediary shall comply with such Entitlement Order or instruction without further consent by the Borrower, the Servicer or any other PersonAccount Control Agreement. Notwithstanding the foregoing, the parties hereto agree that the Securities Intermediary will comply with the following with respect to any Entitlement Order or instruction: (i) until its receipt of a Notice of Exclusive Control (as defined below) with respect to the financial assets in the Collection Account, any cash received into the Collection Account may be invested in Permitted Investments selected by the Borrower or by the Servicer; and (ii) from and after its receipt of a Notice of Exclusive Control (as defined below), with respect to the financial assets in the Collection Account and without further consent of the Borrower, the Servicer or any other Person, any cash received into the Collection Account, may be invested in Permitted Investments selected by the Program Agent, for the benefit of the Secured Parties.
(h) Upon receipt by the Securities Intermediary of a written notice substantially in the form of Exhibit K hereto (a “Notice of Exclusive Control”), the Securities Intermediary will take all Entitlement Orders, instructions or other directions it receives from the Program Agent, on behalf of the Secured Parties, with respect to the Collection Account, without further consent by the Borrower, the Servicer or any other Person, and shall cease complying with Entitlement Orders, instructions or other directions concerning the Collection Account originated by the Borrower, the Servicer or any other Person.
(i) In the event that the Securities Intermediary has or subsequently obtains by agreement, by operation of law or otherwise a security interest in any of the Collection Account or any financial assets, funds, cash or other property credited thereto or any security entitlement with respect thereto, the Securities Intermediary hereby agrees that such security interest shall be subordinate to the security interest of the Program Agent, for the benefit of the Secured Parties. Notwithstanding the preceding sentence, the financial assets, funds, cash or other property credited to any of the Collection Account will not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than the Program Agent, for the benefit of the Secured Parties (except that the Securities Intermediary may set-off (i) all amounts due to the Securities Intermediary in respect of customary fees and expenses for the routine maintenance and operation of the Collection Account, and (ii) the face amount of any checks that have been credited to the Collection Account but are subsequently returned unpaid because of uncollected or insufficient funds).
(j) Regardless of any provision in any other agreement, for purposes of the UCC, New York shall be deemed to be the “bank’s jurisdiction” (within the meaning of Section 9-304 of the UCC) and the “security intermediary’s jurisdiction” (within the meaning of Section 8-110 of the UCC).
Appears in 1 contract
The Collection Account. (a) On or prior Pursuant to the Closing DateExisting Agreement, the Borrower shall establish Paying Agent established and shall thereafter maintain an Eligible the Collection Account in the name of the Borrower for the purpose of receiving Collections Collections. The Paying Agent has also established, for purposes of creating the Disbursement Account and the Reserve Accounts, sub-accounts of the Collection Account (the “Collection Account”)which may be ledger or book entry accounts and not actual accounts) or separate Accounts. The taxpayer identification number associated with the Collection Account, Disbursement Account and Reserve Accounts shall be that of the Borrower Representative and the Borrower Representative (and other applicable Borrowers) will report for Federalfederal, state and local income taxes, as applicable, the income, if any, represented by the Collection Account, Disbursement Account and Reserve Accounts to the extent permitted under applicable law. The Collection Account, Disbursement Account and Reserve Accounts shall be under the sole dominion and control of the Administrative Agent. All costs and expenses of establishing and maintaining the Collection Account, Disbursement Account and Reserve Accounts shall be paid by the Borrowers. For the avoidance of doubt, the Paying Agent shall not be responsible for reviewing and reconciling the Collection Account, Disbursement Account and Reserve Accounts.
(b) The Collection Account, Disbursement Account and Reserve Accounts shall initially be established and at ▇▇▇▇▇ Fargo Bank, National Association. ▇▇▇▇▇ Fargo Bank, National Association hereby confirms that it is a national banking association and all times maintained with the Paying Agent which shall act as a “securities intermediary” (as defined in Section 8-102 of the UCC) and a “bank” (as defined in Section 9-102 of the UCC) hereunder (in such capacities, the “Securities Intermediary”) with respect to the Collection Account, the Disbursement Account and the Reserve Accounts. In the event that the account number of Paying Agent ceases to be a Qualified Institution, the Administrative Agent shall, within thirty (30) days thereof, appoint a Qualified Institution to be the successor Paying Agent and establish a new Collection Account, a new Disbursement Account and new Reserve Accounts at such Qualified Institution (and the Paying Agent shall immediately transfer all amounts in the then existing Disbursement Account, Collection Account is [***]and Reserve Accounts to such new accounts).
(c) The Collection Account, Disbursement Account and Reserve Accounts shall each be a “securities account” as defined in Section 8-501 of the UCC and shall be maintained by the Securities Intermediary as a securities intermediary in the name of the BorrowerBorrower Representative, subject to the lien of the Program Administrative Agent, for the benefit of the Secured Parties. The Securities Intermediary shall treat the Program Agent Borrower Representative as the “entitlement holder” (within the meaning of Section 8-102(a)(7) of the UCC) in respect of all “financial assets” (within the meaning of Section 8-102(a)(9) of the UCC) credited to the Collection Account, Disbursement Account and Reserve Accounts;
(d) The Securities Intermediary hereby confirms and agrees that:
(i) the Securities Intermediary shall not change the name or account number of the Collection Account, Disbursement Account or Reserve Accounts without the prior written consent of the Program AgentAdministrative Agent and the Borrower Representative;
(ii) all securities or other property underlying any financial assets (as hereinafter defined) credited to the Collection Account, Disbursement Account or Reserve Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or indorsed in blank or credited to another securities account maintained in the name of the Securities Intermediary, and in no case will any financial asset credited to the Collection Account, Disbursement Account or Reserve Accounts be registered in the name of the any Borrower or any other Person, payable to the order of the any Borrower or specially indorsed to the any Borrower or any other Person, except to the extent the foregoing have been specially indorsed to the Program Administrative Agent, for the benefit of the Secured Parties, or in blank;
(iii) all property transferred or delivered to the Securities Intermediary pursuant to this Agreement for deposit into the Collection Account, Disbursement Account or Reserve Accounts will be promptly credited to the Collection Account, Disbursement Account or applicable other Account, as applicable;
(iv) the Collection Account, Disbursement Account is an account and Reserve Accounts are accounts to which financial assets are or may be credited, and the Securities Intermediary shall, subject to the terms of this Agreement, treat each of the Borrower and the Servicer Administrative Agent as entitled to exercise the rights that comprise any financial asset credited to each such account;
(v) the Securities Intermediary shall promptly deliver copies of all statements, confirmations and other correspondence concerning the Collection Account, Disbursement Account and Reserve Accounts and/or any financial assets credited thereto simultaneously to each of the Servicer (on behalf of Administrative Agent to the Borrower) and the Program Agent Borrower Representative, at the address for each set forth on Schedule II III to this Agreement; and
(vi) notwithstanding the intent of the parties hereto, to the extent that any Collection Account, Disbursement Account or any Reserve Account shall be determined to constitute a “deposit account” within the meaning of Section 9-102(a)(29) of the UCC, the Collection Account, Disbursement Account and Reserve Accounts, as applicable, shall be subject to the exclusive control of the Program Administrative Agent, for the benefit of the Secured Parties, and the Securities Intermediary will comply with instructions originated by the Program Administrative Agent directing disposition of the funds in the Collection Account, Disbursement Account and Reserve Accounts without further consent by the Borrower or the Servicer; provided that, notwithstanding the foregoing, until such time as the Securities Intermediary receives a Notice of Exclusive Control (as defined below), the Program Agent hereby authorizes the Securities [***] Confidential information on this page has been omitted and filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Request. Intermediary to honor all withdrawal, payment, transfer or other instructions directing disposition of the funds in the Collection Account received from the Borrower or the Servicer, on its behalfBorrowers.
(e) The Securities Intermediary hereby agrees that each item of property (including, without limitation, including any investment property, financial asset, security, instrument or cash) credited to the Collection Account, Disbursement Account and Reserve Accounts shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the UCC.
(f) Except as otherwise set forth in Section 2.20(g2.17(g) and (h), the Securities Intermediary will not comply with “entitlement orders” (as defined in Section 8-102(a)(8) of the UCC) (“Entitlement Orders”) originated by the Borrower or by the ServicerBorrowers. Neither the Servicer nor the Borrower The Borrowers shall not directly make any withdrawals from the Collection Account, Disbursement Account and Reserve Accounts.
(g) If at any time the Securities Intermediary shall receive any Entitlement Order from the Program Administrative Agent (i.e., an order directing a transfer or redemption of any financial asset in the Collection Account, Disbursement Account or Reserve Accounts), or any “instruction” (within the meaning of Section 9-104 of the UCC), originated by the Program Administrative Agent, the Securities Intermediary shall comply with such Entitlement Order or instruction without further consent by the Borrower, the Servicer Borrowers or any other Person. Notwithstanding the foregoing, the parties hereto agree that the Securities Intermediary will comply with the following with respect to any Entitlement Order or instruction: (i) until its receipt of a Notice of Exclusive Control (as defined below) with respect to the financial assets in the Collection Account, any Any cash received into the Collection Account or Reserve Accounts may be invested in Permitted Investments selected by the Borrower or by the Servicer; Representative, subject to Section 2.06(e) and (ii) from and after its receipt of a Notice of Exclusive Control (as defined below), with respect to the financial assets in the Collection Account and without further consent of the Borrower, the Servicer or any other Person, any cash received into the Collection Account, may be invested in Permitted Investments selected by the Program Agent, for the benefit of the Secured PartiesSection 6.11.
(h) Upon receipt by the Securities Intermediary of a written notice substantially in the form of Exhibit K hereto (a “Notice of Exclusive Control”), the Securities Intermediary will take all Entitlement Orders, instructions or other directions it receives from the Program Agent, on behalf of the Secured Parties, with respect to the Collection Account, without further consent by the Borrower, the Servicer or any other Person, and shall cease complying with Entitlement Orders, instructions or other directions concerning the Collection Account originated by the Borrower, the Servicer or any other Person.
(i) In the event that the Securities Intermediary has or subsequently obtains by agreement, by operation of law or otherwise a security interest in any of the Collection Account, Disbursement Account or Reserve Accounts or any financial assets, funds, cash or other property credited thereto or any security entitlement with respect thereto, the Securities Intermediary hereby agrees that such security interest shall be subordinate to the security interest of the Program Administrative Agent, for the benefit of the Secured Parties. Notwithstanding the preceding sentence, the financial assets, funds, cash or other property credited to any of the Collection Account, Disbursement Account or Reserve Accounts will not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than the Program Administrative Agent, for the benefit of the Secured Parties (except that the Securities Intermediary may set-off (i) all amounts due to the Securities Intermediary in respect of customary fees and expenses for the routine maintenance and operation of the Collection Account, Disbursement Account and Reserve Accounts, and (ii) the face amount of any checks that have been credited to the Collection Account but are subsequently returned unpaid because of uncollected or insufficient funds).
(ji) Regardless of any provision in any other agreement, for purposes of the UCC, New York shall be deemed to be the “bank’s jurisdiction” (within the meaning of Section 9-304 of the UCC) and the “security intermediary’s jurisdiction” (within the meaning of Section 8-110 of the UCC).
(j) The insufficiency of funds on deposit in the Collection Account, Disbursement Account or Reserve Accounts shall not relieve the Borrowers from the obligation to make any payments, as and when due pursuant to this Agreement and the other Loan Documents, and such obligations shall be separate and independent, and not conditioned on any event or circumstance whatsoever.
Appears in 1 contract
The Collection Account. (a) On or prior to the Closing Date, the Borrower shall establish and shall thereafter maintain an Eligible Account in the name of the Borrower for the purpose of receiving Collections (the “Collection Account”). The taxpayer identification number associated with the Collection Account shall be that of the Borrower and the Borrower will report for Federal, state and local income taxes, the income, if any, represented by the Collection Account.
(b) The Collection Account shall initially be established at ▇▇▇▇▇ Fargo Bank, National Association. ▇▇▇▇▇ Fargo Bank, National Association hereby confirms that it is a national banking association and shall act as a “securities intermediary” (as defined in Section 8-102 of the UCC) and a “bank” (as defined in Section 9-102 of the UCC) hereunder (in such capacities, the “Securities Intermediary”) with respect to the Collection Account and that the account number of the Collection Account is [***].
(c) The Collection Account shall be a “securities account” as defined in Section 8-501 of the UCC and shall be maintained by the Securities Intermediary as a securities intermediary in the name of the Borrower, subject to the lien of the Program AgentServicer, for the benefit of the Secured Parties. The Securities Intermediary Certificateholders and any Receivables Purchasers, shall treat the Program Agent as the “entitlement holder” (within the meaning establish and maintain, with an office or branch of Section 8-102(a)(7) of the UCC) in respect of all “financial assets” (within the meaning of Section 8-102(a)(9) of the UCC) credited to the Collection Account;
(d) The Securities Intermediary hereby confirms and agrees that:
(i) the Securities Intermediary shall not change the name or account number of the Collection Account without the prior written consent of the Program Agent;
(ii) all securities or other property underlying any financial assets (as hereinafter defined) credited to the Collection Account shall be registered a Qualified Depository Institution, in the name of the Securities Intermediary, indorsed to the Securities Intermediary or indorsed in blank or credited to another securities account maintained in the name Trustee and on behalf of the Securities IntermediaryTrust, and a segregated account (the "Collection Account") bearing a designation clearly indicating that the funds deposited therein are held in no case will any financial asset credited to the Collection Account be registered in the name of the Borrower or any other Person, payable to the order of the Borrower or specially indorsed to the Borrower or any other Person, except to the extent the foregoing have been specially indorsed to the Program Agent, trust for the benefit of the Secured PartiesCertificateholders, or in blank;
(iii) all property transferred or delivered to any Receivables Purchasers and any Enhancement Provider. The Trustee, for the Securities Intermediary pursuant to this Agreement will be promptly credited to the Collection Account;
(iv) the Collection Account is an account to which financial assets are or may be credited, and the Securities Intermediary shall, subject to the terms of this Agreement, treat each ratable benefit of the Borrower and Investor Certificateholders in accordance with their Investor Interests, the Servicer as entitled to exercise the rights that comprise any financial asset credited to each such account;
(v) the Securities Intermediary shall promptly deliver copies of all statements, confirmations and other correspondence concerning the Collection Account and/or any financial assets credited thereto simultaneously to each of the Servicer (on behalf of the Borrower) and the Program Agent at the address for each set forth on Schedule II to this Agreement; and
(vi) notwithstanding the intent of the parties heretoReceivables Purchasers, to the extent that Collection Account shall be determined to constitute a “deposit account” within of their undivided interest in the meaning of Section 9-102(a)(29) Receivables, the Holder of the UCC, the Collection Account shall be subject Exchangeable Seller Certificate (to the exclusive control extent of the Program Agent, for the benefit of the Secured Parties, Seller Interest) and the Securities Intermediary will comply with instructions originated by the Program Agent directing disposition of the funds in the Collection Account without further consent by the Borrower or the Servicer; provided that, notwithstanding the foregoing, until such time as the Securities Intermediary receives a Notice of Exclusive Control (as defined below), the Program Agent hereby authorizes the Securities [***] Confidential information on this page has been omitted and filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Request. Intermediary to honor all withdrawal, payment, transfer or other instructions directing disposition of the funds in the Collection Account received from the Borrower or the Servicer, on its behalf.
(e) The Securities Intermediary hereby agrees that each item of property (including, without limitation, any investment property, financial asset, security, instrument or cash) credited Enhancement Provider to the Collection Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the UCC.
(f) Except as otherwise set forth in Section 2.20(g) and (h), the Securities Intermediary will comply with “entitlement orders” (as defined in Section 8-102(a)(8) of the UCC) (“Entitlement Orders”) originated by the Borrower or by the Servicer. Neither the Servicer nor the Borrower shall directly make any withdrawals from the Collection Account.
(g) If at any time the Securities Intermediary shall receive any Entitlement Order from the Program Agent (i.e., an order directing a transfer or redemption extent of any financial asset Enhancement Invested Amount, shall possess all right, title and interest in the Collection Account), or any “instruction” (within the meaning of Section 9-104 of the UCC), originated by the Program Agent, the Securities Intermediary shall comply with such Entitlement Order or instruction without further consent by the Borrower, the Servicer or any other Person. Notwithstanding the foregoing, the parties hereto agree that the Securities Intermediary will comply with the following with respect all funds on deposit from time to any Entitlement Order or instruction: (i) until its receipt of a Notice of Exclusive Control (as defined below) with respect to the financial assets in the Collection Account, any cash received into the Collection Account may be invested in Permitted Investments selected by the Borrower or by the Servicer; and (ii) from and after its receipt of a Notice of Exclusive Control (as defined below), with respect to the financial assets time in the Collection Account and without further consent in all proceeds thereof. The Collection Account shall be under the sole dominion and control of the BorrowerTrustee for the ratable benefit of the Investor Certificateholders, the Receivables Purchasers, the Holder of the Exchangeable Seller Certificate and any Enhancement Provider to the extent of any Enhancement Invested Amount, as set forth above. Except as expressly provided in this Agreement, the Servicer agrees that it shall have no right of set-off or banker's lien against, and no right to otherwise deduct from, any funds held in the Collection Account for any amount owed to it by the Trustee, the Trust, the Seller, the Originator, or any other PersonCertificateholder, any cash received into Receivables Purchaser, Purchaser Representative or Enhancement Provider. Upon the Collection Account, may be invested in Permitted Investments selected by the Program Agent, for the benefit occurrence of the Secured Parties.
(h) Upon receipt by the Securities Intermediary of a written notice substantially in the form of Exhibit K hereto (a “Notice of Exclusive Control”), the Securities Intermediary will take all Entitlement Orders, instructions or other directions it receives from the Program Agent, on behalf of the Secured Parties, an Early Amortization Event with respect to any Series, Collections shall be withdrawn from the Initial Depository Accounts and deposited in the Collection Account, without further consent by the BorrowerAccount as specified in Section 4.3(a). Pursuant to authority granted to it hereunder, the Servicer shall have the power to instruct the Trustee or any other Person, and shall cease complying with Entitlement Orders, instructions or other directions concerning such Qualified Depository Institution to withdraw funds from the Collection Account originated by for the Borrowerpurpose of carrying out the Servicer's duties hereunder; provided, that upon the occurrence of an Early Amortization Event with respect to any Receivables Purchase Series, if so authorized pursuant to the related Receivables Purchase Agreement for such Receivables Purchase Series, the Servicer related Purchaser Representative shall have the power to instruct the Trustee or any other Person.
such Qualified Depository Institution (ito the extent of the undivided interest of the related Receivables Purchase Series in the Receivables and Collections thereof) In the event that the Securities Intermediary has or subsequently obtains by agreement, by operation of law or otherwise a security interest in any of to withdraw funds from the Collection Account or any financial assets, funds, cash or other property credited thereto or any security entitlement with respect thereto, the Securities Intermediary hereby agrees that as authorized pursuant to such security interest shall be subordinate to the security interest of the Program Agent, for the benefit of the Secured Parties. Notwithstanding the preceding sentence, the financial assets, funds, cash or other property credited to any of the Collection Account will not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than the Program Agent, for the benefit of the Secured Parties (except that the Securities Intermediary may set-off (i) all amounts due to the Securities Intermediary in respect of customary fees and expenses for the routine maintenance and operation of the Collection Account, and (ii) the face amount of any checks that have been credited to the Collection Account but are subsequently returned unpaid because of uncollected or insufficient funds)Receivables Purchase Agreement.
(j) Regardless of any provision in any other agreement, for purposes of the UCC, New York shall be deemed to be the “bank’s jurisdiction” (within the meaning of Section 9-304 of the UCC) and the “security intermediary’s jurisdiction” (within the meaning of Section 8-110 of the UCC).
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Charming Shoppes Receivables Corp)
The Collection Account. (a) On or prior to the Closing Date, the Borrower shall establish and shall thereafter maintain an Eligible Account in the name of the Borrower for the purpose of receiving Collections (the “Collection Account”). The taxpayer identification number associated with the Collection Account shall be that of the Borrower and the Borrower will report for Federal, state and local income taxes, the income, if any, represented by the Collection Account.
(b) The Collection Account shall initially be established at ▇▇▇▇▇ Fargo Bank, National Association. ▇▇▇▇▇ Fargo Bank, National Association hereby confirms that it is a national banking association and shall act as a “securities intermediary” (as defined in Section 8-102 of the UCC) and a “bank” (as defined in Section 9-102 of the UCC) hereunder (in such capacities, the “Securities Intermediary”) with respect to the Collection Account and that the account number of the Collection Account is [***].
(c) The Collection Account shall be a “securities account” as defined in Section 8-501 of the UCC and shall be maintained by the Securities Intermediary as a securities intermediary in the name of the Borrower, subject to the lien of the Program Agent, for the benefit of the Secured Parties. The Securities Intermediary shall treat the Program Agent as the “entitlement holder” (within the meaning of Section 8-102(a)(7) of the UCC) in respect of all “financial assets” (within the meaning of Section 8-102(a)(9) of the UCC) credited to the Collection Account;
(d) The Securities Intermediary hereby confirms and agrees that:
(i) the Securities Intermediary shall not change the name or account number of the Collection Account without the prior written consent of the Program Agent;
(ii) all securities or other property underlying any financial assets (as hereinafter defined) credited to the Collection Account shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or indorsed in blank or credited to another securities account maintained in the name of the Securities Intermediary, and in no case will any financial asset credited to the Collection Account be registered in the name of the Borrower or any other Person, payable to the order of the Borrower or specially indorsed to the Borrower or any other Person, except to the extent the foregoing have been specially indorsed to the Program Agent, for the benefit of the Secured Parties, or in blank;
(iii) all property transferred or delivered to the Securities Intermediary pursuant to this Agreement will be promptly credited to the Collection Account;
(iv) the Collection Account is an account to which financial assets are or may be credited, and the Securities Intermediary shall, subject to the terms of this Agreement, treat each of the Borrower and the Servicer as entitled to exercise the rights that comprise any financial asset credited to each such account;
(v) the Securities Intermediary shall promptly deliver copies of all statements, confirmations and other correspondence concerning the Collection Account and/or any financial assets credited thereto simultaneously to each of the Servicer (on behalf of the Borrower) and the Program Agent at the address for each set forth on Schedule II to this Agreement; and
(vi) notwithstanding the intent of the parties hereto, to the extent that Collection Account shall be determined to constitute a “deposit account” within the meaning of Section 9-102(a)(29) of the UCC, the Collection Account shall be subject to the exclusive control of the Program Agent, for the benefit of the Secured Parties, and the Securities Intermediary will comply with instructions originated by the Program Agent directing disposition of the funds in the Collection Account without further consent by the Borrower or the Servicer; provided that, notwithstanding the foregoing, until such time as the Securities Intermediary receives a Notice of Exclusive Control (as defined below), the Program Agent hereby authorizes the Securities [***] Confidential information on this page has been omitted and filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Request. Intermediary to honor all withdrawal, payment, transfer or other instructions directing disposition of the funds in the Collection Account received from the Borrower or the Servicer, on its behalf.
(e) The Securities Intermediary hereby agrees that each item of property (including, without limitation, any investment property, financial asset, security, instrument or cash) credited to the Collection Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the UCC.
(f) Except as otherwise set forth in Section 2.20(g) and (h), the Securities Intermediary will comply with “entitlement orders” (as defined in Section 8-102(a)(8) of the UCC) (“Entitlement Orders”) originated by the Borrower or by the Servicer. Neither the Servicer nor the Borrower shall directly make any withdrawals from the Collection Account.
(g) If at any time the Securities Intermediary shall receive any Entitlement Order from the Program Agent (i.e., an order directing a transfer or redemption of any financial asset in the Collection Account), or any “instruction” (within the meaning of Section 9-104 of the UCC), originated by the Program Agent, the Securities Intermediary shall comply with such Entitlement Order or instruction without further consent by the Borrower, the Servicer or any other Person. Notwithstanding the foregoing, the parties hereto agree that the Securities Intermediary will comply with the following with respect to any Entitlement Order or instruction: (i) until its receipt of a Notice of Exclusive Control (as defined below) with respect to the financial assets in the Collection Account, any cash received into the Collection Account may be invested in Permitted Investments selected by the Borrower or by the Servicer; and (ii) from and after its receipt of a Notice of Exclusive Control (as defined below), with respect to the financial assets in the Collection Account and without further consent of the Borrower, the Servicer or any other Person, any cash received into the Collection Account, may be invested in Permitted Investments selected by the Program Agent, for the benefit of the Secured Parties.
(h) Upon receipt by the Securities Intermediary of a written notice substantially in the form of Exhibit K hereto (a “Notice of Exclusive Control”), the Securities Intermediary will take all Entitlement Orders, instructions or other directions it receives from the Program Agent, on behalf of the Secured Parties, with respect to the Collection Account, without further consent by the Borrower, the Servicer or any other Person, and shall cease complying with Entitlement Orders, instructions or other directions concerning the Collection Account originated by the Borrower, the Servicer or any other Person.
(i) In the event that the Securities Intermediary has or subsequently obtains by agreement, by operation of law or otherwise a security interest in any of the Collection Account or any financial assets, funds, cash or other property credited thereto or any security entitlement with respect thereto, the Securities Intermediary hereby agrees that such security interest shall be subordinate to the security interest of the Program Agent, for the benefit of the Secured Parties. Notwithstanding the preceding sentence, the financial assets, funds, cash or other property credited to any of the Collection Account will not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than the Program Agent, for the benefit of the Secured Parties (except that the Securities Intermediary may set-off (i) all amounts due to the Securities Intermediary in respect of customary fees and expenses for the routine maintenance and operation of the Collection Account, and (ii) the face amount of any checks that have been credited to the Collection Account but are subsequently returned unpaid because of uncollected or insufficient funds).
(j) Regardless of any provision in any other agreement, for purposes of the UCC, New York shall be deemed to be the “bank’s jurisdiction” (within the meaning of Section 9-304 of the UCC) and the “security intermediary’s jurisdiction” (within the meaning of Section 8-110 of the UCC).
Appears in 1 contract
Sources: Loan and Servicing Agreement (DriveTime Automotive, Inc.)
The Collection Account. (a) On or prior to the Closing Date, the Borrower shall establish and shall thereafter maintain an Eligible Account in the name of the Borrower for the purpose of receiving Collections (the “Collection Account”). The taxpayer identification number associated with the Collection Account shall be that of the Borrower and the Borrower will report for Federal, state and local income taxes, the income, if any, represented by the Collection Account.
(b) The Collection Account shall initially be established at ▇▇▇▇▇ Fargo Bank, National Association. ▇▇▇▇▇ Fargo Bank, National Association hereby confirms that it is a national banking association and shall act as a “securities intermediary” (as defined in Section 8-102 of the UCC) and a “bank” (as defined in Section 9-102 of the UCC) hereunder (in such capacities, the “Securities Intermediary”) with respect to the Collection Account and that the account number of the Collection Account is [***].
(c) The Collection Account shall be a “securities account” as defined in Section 8-501 of the UCC and shall be maintained by the Securities Intermediary as a securities intermediary in the name of the Borrower, subject to the lien of the Program AgentServicer, for the benefit of the Secured Parties. The Securities Intermediary Certificateholders and any Receivables Purchasers, shall treat the Program Agent as the “entitlement holder” (within the meaning establish and maintain, with an office or branch of Section 8-102(a)(7) of the UCC) in respect of all “financial assets” (within the meaning of Section 8-102(a)(9) of the UCC) credited to the Collection Account;
(d) The Securities Intermediary hereby confirms and agrees that:
(i) the Securities Intermediary shall not change the name or account number of the Collection Account without the prior written consent of the Program Agent;
(ii) all securities or other property underlying any financial assets (as hereinafter defined) credited to the Collection Account shall be registered a Qualified Depository Institution, in the name of the Securities Intermediary, indorsed to the Securities Intermediary or indorsed in blank or credited to another securities account maintained in the name Trustee and on behalf of the Securities IntermediaryTrust, and a segregated account (the "Collection Account") bearing a designation clearly indicating that the funds deposited therein are held in no case will any financial asset credited to the Collection Account be registered in the name of the Borrower or any other Person, payable to the order of the Borrower or specially indorsed to the Borrower or any other Person, except to the extent the foregoing have been specially indorsed to the Program Agent, trust for the benefit of the Secured PartiesCertificateholders, or in blank;
(iii) all property transferred or delivered to any Receivables Purchasers and any Enhancement Provider. The Trustee, for the Securities Intermediary pursuant to this Agreement will be promptly credited to the Collection Account;
(iv) the Collection Account is an account to which financial assets are or may be credited, and the Securities Intermediary shall, subject to the terms of this Agreement, treat each ratable benefit of the Borrower and Investor Certificateholders in accordance with their Investor Interests, the Servicer as entitled to exercise the rights that comprise any financial asset credited to each such account;
(v) the Securities Intermediary shall promptly deliver copies of all statements, confirmations and other correspondence concerning the Collection Account and/or any financial assets credited thereto simultaneously to each of the Servicer (on behalf of the Borrower) and the Program Agent at the address for each set forth on Schedule II to this Agreement; and
(vi) notwithstanding the intent of the parties heretoReceivables Purchasers, to the extent that Collection Account shall be determined to constitute a “deposit account” within of their undivided interest in the meaning of Section 9-102(a)(29) Receivables, the Holder of the UCC, the Collection Account shall be subject Exchangeable Seller Certificate (to the exclusive control extent of the Program Agent, for the benefit of the Secured Parties, Seller Interest) and the Securities Intermediary will comply with instructions originated by the Program Agent directing disposition of the funds in the Collection Account without further consent by the Borrower or the Servicer; provided that, notwithstanding the foregoing, until such time as the Securities Intermediary receives a Notice of Exclusive Control (as defined below), the Program Agent hereby authorizes the Securities [***] Confidential information on this page has been omitted and filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Request. Intermediary to honor all withdrawal, payment, transfer or other instructions directing disposition of the funds in the Collection Account received from the Borrower or the Servicer, on its behalf.
(e) The Securities Intermediary hereby agrees that each item of property (including, without limitation, any investment property, financial asset, security, instrument or cash) credited Enhancement Provider to the Collection Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the UCC.
(f) Except as otherwise set forth in Section 2.20(g) and (h), the Securities Intermediary will comply with “entitlement orders” (as defined in Section 8-102(a)(8) of the UCC) (“Entitlement Orders”) originated by the Borrower or by the Servicer. Neither the Servicer nor the Borrower shall directly make any withdrawals from the Collection Account.
(g) If at any time the Securities Intermediary shall receive any Entitlement Order from the Program Agent (i.e., an order directing a transfer or redemption extent of any financial asset Enhancement Invested Amount, shall possess all right, title and interest in the Collection Account), or any “instruction” (within the meaning of Section 9-104 of the UCC), originated by the Program Agent, the Securities Intermediary shall comply with such Entitlement Order or instruction without further consent by the Borrower, the Servicer or any other Person. Notwithstanding the foregoing, the parties hereto agree that the Securities Intermediary will comply with the following with respect all funds on deposit from time to any Entitlement Order or instruction: (i) until its receipt of a Notice of Exclusive Control (as defined below) with respect to the financial assets in the Collection Account, any cash received into the Collection Account may be invested in Permitted Investments selected by the Borrower or by the Servicer; and (ii) from and after its receipt of a Notice of Exclusive Control (as defined below), with respect to the financial assets time in the Collection Account and without further consent in all proceeds thereof. The Collection Account shall be under the sole dominion and control of the BorrowerTrustee for the ratable benefit of the Investor Certificateholders, the Receivables Purchasers, the Holder of the Exchangeable Seller Certificate and any Enhancement Provider to the extent of any Enhancement Invested Amount, as set forth above. Except as expressly provided in this Agreement, the Servicer agrees that it shall have no right of set-off or banker's lien against, and no right to otherwise deduct from, any funds held in the Collection Account for any amount owed to it by the Trustee, the Trust, the Seller, the Originator, or any other PersonCertificateholder, any cash received into Receivables Purchaser, Purchaser Representative or Enhancement Provider. Upon the Collection Account, may be invested in Permitted Investments selected by the Program Agent, for the benefit occurrence of the Secured Parties.
(h) Upon receipt by the Securities Intermediary of a written notice substantially in the form of Exhibit K hereto (a “Notice of Exclusive Control”), the Securities Intermediary will take all Entitlement Orders, instructions or other directions it receives from the Program Agent, on behalf of the Secured Parties, an Early Amortization Event with respect to any Series, Collections shall be withdrawn from the Initial Depository Accounts and deposited in the Collection Account, without further consent by the BorrowerAccount as specified in Section 4.3(a). Pursuant to authority granted to it hereunder, the Servicer shall have the power to instruct the Trustee or any other Person, and shall cease complying with Entitlement Orders, instructions or other directions concerning such Qualified Depository Institution to withdraw funds from the Collection Account originated by for the Borrowerpurpose of carrying out the Servicer's duties hereunder; provided, that upon the occurrence of an Early Amortization Event with respect to any Receivables Purchase Series, if so authorized pursuant to the related Receivables Purchase Agreement for such Receivables Purchase Series, the Servicer related Purchaser 57 Representative shall have the power to instruct the Trustee or any other Person.
such Qualified Depository Institution (ito the extent of the undivided interest of the related Receivables Purchase Series in the Receivables and Collections thereof) In the event that the Securities Intermediary has or subsequently obtains by agreement, by operation of law or otherwise a security interest in any of to withdraw funds from the Collection Account or any financial assets, funds, cash or other property credited thereto or any security entitlement with respect thereto, the Securities Intermediary hereby agrees that as authorized pursuant to such security interest shall be subordinate to the security interest of the Program Agent, for the benefit of the Secured Parties. Notwithstanding the preceding sentence, the financial assets, funds, cash or other property credited to any of the Collection Account will not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than the Program Agent, for the benefit of the Secured Parties (except that the Securities Intermediary may set-off (i) all amounts due to the Securities Intermediary in respect of customary fees and expenses for the routine maintenance and operation of the Collection Account, and (ii) the face amount of any checks that have been credited to the Collection Account but are subsequently returned unpaid because of uncollected or insufficient funds)Receivables Purchase Agreement.
(j) Regardless of any provision in any other agreement, for purposes of the UCC, New York shall be deemed to be the “bank’s jurisdiction” (within the meaning of Section 9-304 of the UCC) and the “security intermediary’s jurisdiction” (within the meaning of Section 8-110 of the UCC).
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Charming Shoppes Master Trust)
The Collection Account. (a) On or prior to the Closing Datedate hereof, the Borrower shall establish and shall thereafter maintain an Eligible Account in the name of the Borrower for the purpose of receiving Collections (the “Collection Account”). The taxpayer identification number associated with the Collection Account shall be that of the Borrower and the Borrower will report for Federal, state and local income taxes, the income, if any, represented by the Collection Account.
(b) The Collection Account shall initially be established at ▇▇▇▇▇ Fargo Bank, National Association. ▇▇▇▇▇ Fargo Bank, National Association hereby confirms that it is a national banking association and shall act as a “securities intermediary” (as defined in Section 8-102 of the UCC) and a “bank” (as defined in Section 9-102 of the UCC) hereunder (in such capacities, the “Securities Intermediary”) with respect to the Collection Account and that the account number of the Collection Account is [***]▇▇▇▇▇▇▇▇.
(c) The Collection Account shall be a “securities account” as defined in Section 8-8- 501 of the UCC and shall be maintained by the Securities Intermediary as a securities intermediary in the name of the Borrower, subject to the lien of the Program AgentLender, for the benefit of the Secured Parties. The Securities Intermediary shall treat the Program Agent Lender as the “entitlement holder” (within the meaning of Section 8-102(a)(7) of the UCC) in respect of all “financial assets” (within the meaning of Section 8-102(a)(9) of the UCC) credited to the Collection Account;
(d) The Securities Intermediary hereby confirms and agrees that:
(i) the Securities Intermediary shall not change the name or account number of the Collection Account without the prior written consent of the Program AgentLender;
(ii) all securities or other property underlying any financial assets (as hereinafter - 49 - defined) credited to the Collection Account shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or indorsed in blank or credited to another securities account maintained in the name of the Securities Intermediary, and in no case will any financial asset credited to the Collection Account be registered in the name of the Borrower or any other Person, payable to the order of the Borrower or specially indorsed to the Borrower or any other Person, except to the extent the foregoing have been specially indorsed to the Program AgentLender, for the benefit of the Secured Parties, or in blank;
(iii) all property transferred or delivered to the Securities Intermediary pursuant to this Agreement will be promptly credited to the Collection Account;
(iv) the Collection Account is an account to which financial assets are or may be credited, and the Securities Intermediary shall, subject to the terms of this Agreement, treat each of the Borrower and the Servicer as entitled to exercise the rights that comprise any financial asset credited to each such account;
(v) the Securities Intermediary shall promptly deliver copies of all statements, confirmations and other correspondence concerning the Collection Account and/or any financial assets credited thereto simultaneously to each of the Servicer (on behalf of the Borrower) and the Program Agent Lender at the address for each set forth on Schedule II to this Agreement; and
(vi) notwithstanding the intent of the parties hereto, to the extent that Collection Account shall be determined to constitute a “deposit account” within the meaning of Section 9-102(a)(29) of the UCC, the Collection Account shall be subject to the exclusive control of the Program AgentLender, for the benefit of the Secured Parties, and the Securities Intermediary will comply with instructions originated by the Program Agent Lender directing disposition of the funds in the Collection Account without further consent by the Borrower or the Servicer; provided that, notwithstanding the foregoing, until such time as the Securities Intermediary receives a Notice of Exclusive Control (as defined below), the Program Agent Lender hereby authorizes the Securities [***] Confidential information on this page has been omitted and filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Request. Intermediary to honor all withdrawal, payment, transfer or other instructions directing disposition of the funds in the Collection Account received from the Borrower or the Servicer, on its behalf.
(e) The Securities Intermediary hereby agrees that each item of property (including, without limitation, any investment property, financial asset, security, instrument or cash) credited to the Collection Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the UCC.
(f) Except as otherwise set forth in Section 2.20(g) and (h), the Securities Intermediary will comply with “entitlement orders” (as defined in Section 8-102(a)(8) of the UCC) (“Entitlement Orders”) originated by the Borrower or by the Servicer. Neither the Servicer nor the Borrower shall directly make any withdrawals from the Collection Account.
(g) If at any time the Securities Intermediary shall receive any Entitlement Order from the Program Agent Lender (i.e., an order directing a transfer or redemption of any financial asset in the Collection Account), or any “instruction” (within the meaning of Section 9-104 of the UCC), originated by the Program AgentLender, the Securities Intermediary shall comply with such Entitlement Order or instruction without further consent by the Borrower, the Servicer or any other Person. Notwithstanding the foregoing, the parties hereto agree that the Securities Intermediary will comply with the following with respect to any Entitlement Order or instruction: (i) until its receipt of a Notice of Exclusive Control (as defined below) with respect to the financial assets in the Collection Account, any cash - 50 - received into the Collection Account may be invested in Permitted Investments selected by the Borrower or by the Servicer; and (ii) from and after its receipt of a Notice of Exclusive Control (as defined below), with respect to the financial assets in the Collection Account and without further consent of the Borrower, the Servicer or any other Person, any cash received into the Collection Account, may be invested in Permitted Investments selected by the Program AgentLender, for the benefit of the Secured Parties.
(h) Upon receipt by the Securities Intermediary of a written notice substantially in the form of Exhibit K I hereto (a “Notice of Exclusive Control”), the Securities Intermediary will take all Entitlement Orders, instructions or other directions it receives from the Program AgentLender, on behalf of the Secured Parties, with respect to the Collection Account, without further consent by the Borrower, the Servicer or any other Person, and shall cease complying with Entitlement Orders, instructions or other directions concerning the Collection Account originated by the Borrower, the Servicer or any other Person.
(i) In the event that the Securities Intermediary has or subsequently obtains by agreement, by operation of law or otherwise a security interest in any of the Collection Account or any financial assets, funds, cash or other property credited thereto or any security entitlement with respect thereto, the Securities Intermediary hereby agrees that such security interest shall be subordinate to the security interest of the Program AgentLender, for the benefit of the Secured Parties. Notwithstanding the preceding sentence, the financial assets, funds, cash or other property credited to any of the Collection Account will not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than the Program AgentLender, for the benefit of the Secured Parties (except that the Securities Intermediary may set-off (i) all amounts due to the Securities Intermediary in respect of customary fees and expenses for the routine maintenance and operation of the Collection Account, and (ii) the face amount of any checks that have been credited to the Collection Account but are subsequently returned unpaid because of uncollected or insufficient funds).
(j) Regardless of any provision in any other agreement, for purposes of the UCC, New York shall be deemed to be the “bank’s jurisdiction” (within the meaning of Section 9-304 of the UCC) and the “security intermediary’s jurisdiction” (within the meaning of Section 8-110 of the UCC).
Appears in 1 contract
Sources: Loan and Servicing Agreement (Drivetime Automotive Group Inc)
The Collection Account. (a) On or prior to the Closing Date, the Borrower shall establish and shall thereafter maintain an Eligible Account in the name of the Borrower for the purpose of receiving Collections (the “Collection Account”). The taxpayer identification number associated with the Collection Account shall be that of the Borrower and the Borrower will report for Federal, state and local income taxes, the income, if any, represented by the Collection Account.
(b) The Collection Account shall initially be established at ▇▇▇▇▇ Fargo Bank, National Association. ▇▇▇▇▇ Fargo Bank, National Association hereby confirms that it is a national banking association and shall act as a “securities intermediary” (as defined in Section 8-102 of the UCC) and a “bank” (as defined in Section 9-102 of the UCC) hereunder (in such capacities, the “Securities Intermediary”) with respect to the Collection Account and that the account number of the Collection Account is [***].
(c) The Collection Account shall be a “securities account” as defined in Section 8-501 of the UCC and shall be maintained by the Securities Intermediary as a securities intermediary in the name of the Borrower, subject to the lien of the Program AgentTrustee, for the benefit of the Secured Parties. The Securities Intermediary Certificateholders, shall treat the Program Agent as the “entitlement holder” (within the meaning of Section 8-102(a)(7) of the UCC) in respect of all “financial assets” (within the meaning of Section 8-102(a)(9) of the UCC) credited establish and maintain or cause to the Collection Account;
(d) The Securities Intermediary hereby confirms be established and agrees that:
(i) the Securities Intermediary shall not change the name or account number of the Collection Account without the prior written consent of the Program Agent;
(ii) all securities or other property underlying any financial assets (as hereinafter defined) credited to the Collection Account shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or indorsed in blank or credited to another securities account maintained in the name of the Securities IntermediaryTrustee, and in no case will any financial asset credited to the Collection Account be registered in the name on behalf of the Borrower or any other PersonTrust, payable to with an Eligible Institution a segregated account (the order of "Collec- tion Account"), bearing a designation clearly indicating that the Borrower or specially indorsed to the Borrower or any other Person, except to the extent the foregoing have been specially indorsed to the Program Agent, funds deposited therein are held for the benefit of the Secured PartiesCertificateholders. The Trustee shall possess all right, or title and interest in blank;
(iii) all property transferred or delivered funds on deposit from time to the Securities Intermediary pursuant to this Agreement will be promptly credited to the Collection Account;
(iv) time in the Collection Account is an account to which financial assets are or may be credited, and the Securities Intermediary shall, subject to the terms of this Agreement, treat each of the Borrower and the Servicer as entitled to exercise the rights that comprise any financial asset credited to each such account;
(v) the Securities Intermediary shall promptly deliver copies of in all statements, confirmations and other correspondence concerning the Collection Account and/or any financial assets credited thereto simultaneously to each of the Servicer (on behalf of the Borrower) and the Program Agent at the address for each set forth on Schedule II to this Agreement; and
(vi) notwithstanding the intent of the parties hereto, to the extent that pro- ceeds thereof. The Collection Account shall be determined to constitute a “deposit account” within under the meaning of Section 9-102(a)(29) of the UCC, the Collection Account shall be subject to the exclusive sole dominion and control of the Program Agent, Trustee for the benefit of the Secured PartiesCertificateholders. If, and at any time, the Securities Intermediary will comply with instructions originated by the Program Agent directing disposition of the funds in institu- tion holding the Collection Account without further consent by ceases to be an Eligible Institution, the Borrower Trustee (or the Servicer; provided thatServicer on its behalf) shall within five Business Days establish a new Collection Account meeting the conditions specified above with an Eligible Institution, notwithstanding transfer any cash and/or any investments to such new Collection Account and from the foregoingdate such new Collection Account is established, until such time as it shall be the Securities Intermediary receives a Notice of Exclusive Control (as defined below"Collection Account." Pursuant to the authority granted to the Servicer in Section 3.1(b), the Program Agent hereby authorizes Servicer shall have the Securities [***] Confidential information on this page has been omitted power, revocable by the Trustee, to make withdrawals and filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Request. Intermediary to honor all withdrawal, payment, transfer or other instructions directing disposition of the funds in payments from the Collection Account received and to instruct the Trustee to make withdrawals and payments from the Borrower or the Servicer, on its behalf.
(e) The Securities Intermediary hereby agrees that each item of property (including, without limitation, any investment property, financial asset, security, instrument or cash) credited to the Collection Account shall be treated as a “financial asset” within for the meaning purposes of Section 8-102(a)(9) of the UCC.
(f) Except as otherwise set forth in Section 2.20(g) and (h), the Securities Intermediary will comply with “entitlement orders” (as defined in Section 8-102(a)(8) of the UCC) (“Entitlement Orders”) originated by the Borrower or by carrying out the Servicer's or Trustee's duties here- under. Neither Each Series shall represent interests in the Servicer nor Trust, including the Borrower shall directly make any withdrawals from the Collection Account.
(g) If at any time the Securities Intermediary shall receive any Entitlement Order from the Program Agent (i.e., an order directing a transfer or redemption benefits of any financial asset in the Collection Account), or any “instruction” (within the meaning of Section 9-104 of the UCC), originated Enhancement to be provided by the Program Agent, the Securities Intermediary shall comply with such Entitlement Order or instruction without further consent by the Borrower, the Servicer or any other Person. Notwithstanding the foregoing, the parties hereto agree that the Securities Intermediary will comply with the following an Enhancement Provider issued with respect to any Entitlement Order or instruction: (i) until its receipt of a Notice of Exclusive Control (such Series as defined below) with respect indicated in the Supplement relating to such Series and the financial assets right to receive Collections and other amounts at the times and in the amounts specified in this Article IV to be deposited in the Collection Account, the Excess Funding Account and any cash received into other ac- counts maintained for the Collection Account may be invested in Permitted Investments selected by benefit of the Borrower Certificatehold- ers or by the Servicer; and (ii) from and after its receipt of a Notice of Exclusive Control (as defined below), with respect paid to the financial assets Investor Certificateholders. The Exchangeable Transferor Certificate shall represent the interest in the Trust not represented by any Series of Investor Certificates then outstanding, including the right to receive Collections and other amounts at the times and in the amounts specified in this Article IV to be paid to the Transferor (the "Transferor Interest"); provided, however, that such Exchangeable Transferor Certificate shall not represent any interest in the Collection Account and without further consent of the Borrower, the Servicer or any other Person, any cash received into the Collection Account, may be invested in Permitted Investments selected by the Program Agent, accounts maintained for the benefit of the Secured Parties.
(h) Upon receipt Certificateholders or the benefits of any Enhancement to be provided by the Securities Intermediary of a written notice substantially in the form of Exhibit K hereto (a “Notice of Exclusive Control”), the Securities Intermediary will take all Entitlement Orders, instructions or other directions it receives from the Program Agent, on behalf of the Secured Parties, an Enhancement Provider issued with respect to the Collection Accountany Series, without further consent by the Borrower, the Servicer or any other Person, and shall cease complying with Entitlement Orders, instructions or other directions concerning the Collection Account originated by the Borrower, the Servicer or any other Personexcept as specifically provided in this Article IV.
(i) In the event that the Securities Intermediary has or subsequently obtains by agreement, by operation of law or otherwise a security interest in any of the Collection Account or any financial assets, funds, cash or other property credited thereto or any security entitlement with respect thereto, the Securities Intermediary hereby agrees that such security interest shall be subordinate to the security interest of the Program Agent, for the benefit of the Secured Parties. Notwithstanding the preceding sentence, the financial assets, funds, cash or other property credited to any of the Collection Account will not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than the Program Agent, for the benefit of the Secured Parties (except that the Securities Intermediary may set-off (i) all amounts due to the Securities Intermediary in respect of customary fees and expenses for the routine maintenance and operation of the Collection Account, and (ii) the face amount of any checks that have been credited to the Collection Account but are subsequently returned unpaid because of uncollected or insufficient funds).
(j) Regardless of any provision in any other agreement, for purposes of the UCC, New York shall be deemed to be the “bank’s jurisdiction” (within the meaning of Section 9-304 of the UCC) and the “security intermediary’s jurisdiction” (within the meaning of Section 8-110 of the UCC).
Appears in 1 contract
Sources: Master Pooling and Servicing Agreement (Nordstrom Inc)