Collection Procedures. The Master Servicer shall, to the extent such procedures shall be consistent with this Agreement, follow such collection procedures as it follows from time to time with respect to mortgage loans in its servicing portfolio that are comparable to the Mortgage Loans. A summary of the Master Servicer's collection procedures is attached hereto as Exhibit D. A written copy of any such amendment or modification shall be furnished to the Trustee. Consistent with the foregoing, the Master Servicer may in its discretion (1) waive any assumption fees, late payment charges, charges for checks returned for insufficient funds, prepayment fees, if any, or other fees that may be collected in the ordinary course of servicing the Mortgage Loans, (2) if a Mortgagor is in default or appears about to be in default because of a Mortgagor's financial condition, arrange with the Mortgagor a schedule for the payment of delinquent payments due on the related Mortgage Loan or (3) modify payments of monthly principal and interest on any Mortgage Loan becoming subject to the terms of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended (the "Relief Act"), in accordance with the Master Servicer's general policies for comparable mortgage loans subject to the Relief Act; provided, however, that the Master Servicer shall not, [without the prior written consent of the Bond Insurer,] permit any waiver, modification or variance of a Mortgage Loan that would (1) change the Note Rate, (2) forgive the payment of any principal or interest, (3) impair the priority of the lien represented by the related Mortgage or (4) extend the final maturity date of the Mortgage Loan beyond _______ 20___, in any case except to the extent required under the Relief Act. The Master Servicer will not consent to the placement of a deed of trust or mortgage, as applicable, on any Mortgaged Property that has a priority equal to or higher than the lien securing the related Mortgage Loan unless such Mortgage Loan is prepaid in full. No partial release of a Mortgage Loan shall be made if it would cause the Loan-to-Value Ratio of the Mortgage Loan (taking into account the partial release) to be higher than the Loan-to-Value Ratio of the Mortgage Loan at origination.
Appears in 2 contracts
Sources: Servicing Agreement (Union Planters Mortgage Finance Corp), Servicing Agreement (Union Planters Home Equity Corp)
Collection Procedures. (a) On or before the Closing Date, the Servicer, the Seller and the Issuer shall have established and shall maintain thereafter the system of collecting and processing Collections of Purchased Contract Assets set forth in this Section 6.05 to be in effect on and after the Closing Date. The Master Servicer shallshall instruct the Assigned Restaurants to send Mail Payments or Recoveries only to Post Office Boxes listed on Schedule III hereof and to the Collection Deposit Account. The Servicer shall cause each Assigned Restaurant to transmit all Point-of-Sale Payments directly to computer systems owned and operated by the Back-up Servicer, and, so long as Transmedia is acting as the Servicer, the Back-up Servicer agrees to forward electronically data related to such Point-of-Sale Payments to the Servicer.
(b) The Servicer shall process Payments by recording the amount of the Collections received from the Cardmember, the taxes and tips related to such Payments, the Cardmember Rebate, the Processing Fee, the applicable Restaurant number and the amount of Credits to be deducted from the account of the applicable Restaurant.
(c) The Servicer shall process all requests from the Assigned Restaurants for transaction authorizations in connection with the use of a Transmedia Card in the same manner as it processes such requests from all other Restaurants. Servicer shall not authorize any such transactions that have not been properly authorized by a Credit Card Company for payment.
(d) Not later than the Business Day following the receipt of any Mail Payments, the Servicer shall cause such Mail Payments to be processed and forwarded to the appropriate Credit Card Company using the Issuer's individual merchant identification number, and, so long as Transmedia is acting as the Servicer, the Servicer agrees to forward electronically all data related to such Mail Payments to the Back-up Servicer.
(e) Not later than the same day of receipt of any Point-of-Sale Payment, the Servicer shall cause such Point-of-Sale Payments to be processed and forwarded to the appropriate credit card company using the Issuer's individual merchant identification number, and, so long as Transmedia is acting as the Servicer, the Servicer agrees to forward electronically all data related to such Point-of-Sale Payments to the Back-up Servicer.
(f) The Credit Card Companies will be directed to deposit Collections directly into the Collection Deposit Account. In the event that any of the Servicer, the Seller or the Issuer shall receive any Collections from the Credit Card Companies or otherwise, such Person agrees that it is holding such amounts in trust for the Collateral Agent and shall initiate the deposit of such Collections into the Collection Deposit Account within one Business Day of receipt thereof. On the Business Day following receipt of any Collections from the applicable Credit Card Company in the Collection Deposit Account, the Servicer will cause the Collateral Agent to transfer from such Collections, in immediately available funds, an amount equal tO all such Collections received by the Servicer, net of the taxes and tips related to such Collections, the Processing Fees not already paid and the Cardmember Rebates, to the extent Collateral Account.
(g) If any such procedures payments cannot be made in the time period specified in clause (e) above as a result of an event of Force Majeure, so long as such payments are made promptly after the cessation of such event of Force Majeure, but in no event later than two Business Days after such time period, the provisions of such clauses shall be consistent deemed to have been complied with. The Issuer, the Seller and the Servicer agree to take any reasonable actions necessary to correct or overcome such event as soon as possible.
(h) The Servicer shall deposit all Recoveries into the Collateral Account no later than the Business Day following the day of such receipt.
(i) Any funds held by the Issuer, the Seller or the Servicer representing Collections of Purchased Contract Assets shall, until deposited in the Collection Deposit Account or the Collateral Account, be held in trust by the Servicer, the Seller and the Issuer for and as the Collateral Agent's property and shall not be commingled with this Agreementthe Servicer's, follow such collection procedures as it follows from time to time with respect to mortgage loans in its servicing portfolio that are comparable the Seller's or the Issuer's other funds or property.
(j) As each Payment is processed and forwarded to the Mortgage Loans. A summary of Credit Card Companies for payment, the Master Servicer's collection procedures is attached hereto as Exhibit D. A written copy of any such amendment or modification shall be furnished Servicer will forward the Cardmember Rebate to the TrusteeCardmember who generated such Payment. Consistent with If the foregoingCardmember Rebate is in a nonmonetary form, such as airline credits, the Master Servicer may will make such payment as described in Section 6.05(m).
(k) No later than the Business Day following the receipt of confirmation from a credit card company that it will pay amounts related to Mail Payments or Point-of-Sale Payments, the Servicer shall advance out of its discretion own funds the amount of taxes and tips related to such Payment to the Restaurant from which such Payment was received.
(1) waive any assumption feesNo later than the Business Day following the receipt of Collections from a Credit Card Company related to a Payment, late payment charges, charges for checks returned for insufficient funds, prepayment fees, if any, or other fees that may be collected in the ordinary course of servicing the Mortgage Loans, (2) if a Mortgagor is in default or appears about Servicer shall cause to be in default because paid to itself from the Collection Deposit Account the amount of a Mortgagor's financial conditiontaxes and tips, arrange with the Mortgagor a schedule for the payment of delinquent payments due on the related Mortgage Loan or (3) modify payments of monthly principal and interest on any Mortgage Loan becoming subject to the terms of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended (the "Relief Act"), in accordance with the Master Servicer's general policies for comparable mortgage loans subject to the Relief Act; provided, however, that the Master Servicer shall not, [without the prior written consent of the Bond Insurer,] permit any waiver, modification or variance of a Mortgage Loan that would (1) change the Note Rate, (2) forgive the payment of any principal or interest, (3) impair the priority of the lien represented by the related Mortgage or (4) extend the final maturity date of the Mortgage Loan beyond _______ 20___, to such Payment in any case except to the extent required reimbursement for funds advanced under the Relief Act. The Master Servicer will not consent to the placement of a deed of trust or mortgage, as applicable, on any Mortgaged Property that has a priority equal to or higher than the lien securing the related Mortgage Loan unless such Mortgage Loan is prepaid in full. No partial release of a Mortgage Loan shall be made if it would cause the Loan-to-Value Ratio of the Mortgage Loan (taking into account the partial release) to be higher than the Loan-to-Value Ratio of the Mortgage Loan at originationSection 6.05(j).
Appears in 1 contract
Sources: Purchase and Servicing Agreement (Transmedia Network Inc /De/)
Collection Procedures. The Master Servicer shall, to the extent such procedures shall be consistent with this Agreement, follow such collection procedures as it follows from time to time with respect to mortgage loans in its servicing portfolio that are comparable to the Mortgage Loans. A summary of the Master Servicer's collection procedures as of the Closing Date is attached hereto as Exhibit D. A written copy of any such amendment or modification shall be furnished to the Trustee. Consistent with the foregoing, the Master Servicer may in its discretion (1) waive any assumption fees, late payment charges, charges for checks returned for insufficient funds, prepayment feescharges (other than prepayment premiums and penalties), if any, or other fees that may be collected in the ordinary course of servicing the Mortgage Loans, (2) if a Mortgagor is in default or appears about to be in default because of a Mortgagor's financial condition, arrange with the Mortgagor a schedule for the payment of delinquent payments due on the related Mortgage Loan or (3) modify payments of monthly principal and interest on any Mortgage Loan becoming subject to the terms of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended (the "Relief Act"), in accordance with the Master Servicer's general policies for comparable mortgage loans subject to the Relief Act; provided. Notwithstanding the foregoing, howeverin the event that any Mortgage Loan is in default or, that in the Master Servicer shall not, [without the prior written consent judgment of the Bond Insurer,] permit Servicer, such default is reasonably foreseeable, the Servicer, consistent with the servicing standard set forth in Section 2.01, may waive, modify or vary any waiver, modification or variance term of a such Mortgage Loan (including modifications that would (1) change the Note Mortgage Interest Rate, (2) forgive the payment of any principal or interest, (3) impair the priority of the lien represented by the related Mortgage interest or (4) extend the final maturity date of such Mortgage Loan), accept payment from the related Mortgagor of an amount less than the unpaid principal balance in final satisfaction of such Mortgage Loan beyond _______ 20___Loan, in any case except to the extent required under the Relief Act. The Master Servicer will not or consent to the placement postponement of a deed of trust such compliance with any such term or mortgage, as applicable, on otherwise grant indulgence to any Mortgaged Property that has a priority equal to or higher than the lien securing the related Mortgage Loan unless such Mortgage Loan is prepaid Mortgagor if in full. No partial release of a Mortgage Loan shall be made if it would cause the Loan-to-Value Ratio of the Mortgage Loan (taking into account the partial release) to be higher than the Loan-to-Value Ratio of the Mortgage Loan at origination.the
Appears in 1 contract
Sources: Servicing Agreement (Fund America Investors Corp Ii)
Collection Procedures. The Master Servicer (a) On or before the date hereof, Navistar Financial will establish a system of operations, accounts and instructions to the Concentration Bank, Collection Banks, Proceeds Account Banks, International, Dealers and Account Debtors, as provided in this Section. Navistar Financial shall, subject to the provisions of Section 4.13, (i) instruct any Account Debtor obligated to make payments under any Navistar Financial Receivable (other than any Navistar Financial Receivable referred to in clause (ii) below) to make such payments directly to a separate special purpose account of Navistar Financial maintained at a Proceeds Account Bank and containing only Proceeds (a “Proceeds Deposit Account”) and (ii) subject to the provisions of Section 4.13, instruct any Account Debtor obligated to make payments under any Navistar Financial Receivable referred to in clause (d) of the definition of Navistar Financial Receivables to make such payments (except to the extent such procedures shall be consistent with this Agreement, follow such collection procedures as it follows from time to time that any Permitted Receivables Sale Agreement may require otherwise with respect to mortgage loans Receivables sold thereunder) to lock-boxes (the “Lock-boxes”) (in its servicing portfolio that are comparable to the Mortgage Loans. A summary of the Master Servicer's collection procedures is attached hereto as Exhibit D. A written copy case of any such amendment or modification shall be furnished to the Trustee. Consistent with the foregoing, the Master Servicer may in its discretion (1) waive any assumption fees, late payment charges, charges for checks returned for insufficient funds, prepayment fees, if any, or other fees that may be collected payments in the ordinary course form of servicing the Mortgage Loanscash, (2) if a Mortgagor is in default checks, drafts and other instruments or appears about to be in default because of a Mortgagor's financial condition, arrange with the Mortgagor a schedule items for the payment of delinquent money) and accounts (the “Collection Accounts”) (in the case of any payments due made by wire transfer or similar electronic means) maintained by Navistar Financial with the Collection Banks. Payments on account of Wholesale Receivables shall be paid to Lock-boxes and Collection Accounts which are separate from those to which payments on account of Retail Receivables are made. Navistar Financial shall, and shall request International and each Dealer to, pay forthwith into Lock-boxes and Collection Accounts, as appropriate, in the form received (or, in the case of any such payment received by wire transfer or similar electronic means, by such means), all payments on account of Wholesale Receivables and Retail Receivables received directly by Navistar Financial, International or any such Dealer; provided that any such payments received by International shall be deposited forthwith by International into the applicable retail suspense account of Navistar Financial (each such suspense account and each suspense account referred to in the next succeeding sentence, a “Suspense Account”) maintained by a Collection Bank. Navistar Financial shall instruct each Collection Bank to transfer by wire transfer or similar electronic means, on the related Mortgage Loan same business day as received, all amounts deposited by wire transfer or (3) modify payments similar electronic means into the wholesale or retail Collection Account maintained by such Collection Bank pursuant to this Section into a special purpose account of monthly principal and interest on any Mortgage Loan becoming subject to Navistar Financial maintained at the terms of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended Concentration Bank (the "Relief Act"“Proceeds Allocation Account”); provided that, if such Collection Bank receives any such amounts on a day that is not a business day, or too late on a business day to make such a transfer in accordance with such Collection Bank’s normal procedures, then such Collection Bank may make such transfer on the Master Servicer's general policies next succeeding business day. Navistar Financial shall instruct each Collection Bank (x) to deposit all cash, checks, drafts and other instruments or items for comparable mortgage loans subject to the Relief Act; provided, however, that the Master Servicer shall not, [without the prior written consent of the Bond Insurer,] permit any waiver, modification or variance of a Mortgage Loan that would (1) change the Note Rate, (2) forgive the payment of money paid into the wholesale or retail Lock-box (if any) maintained by such Collection Bank pursuant to this Section forthwith in the wholesale or retail Suspense Account of Navistar Financial, as appropriate, maintained by such Collection Bank (except that such Collection Bank may deal with items which are postdated, improperly endorsed or otherwise irregular in accordance with such Collection Bank’s usual procedures) and (y) to transfer by wire transfer or similar electronic means all cash, checks, drafts and other instruments or items deposited into any principal or interest, (3) impair the priority of the lien represented Suspense Account maintained by the related Mortgage or (4) extend the final maturity date of the Mortgage Loan beyond _______ 20___, in any case except such Collection Bank to the extent required under Proceeds Allocation Account on the Relief Act. The Master Servicer will not consent same business day as such items clear in accordance with such Collection Bank’s customary clearing schedule; provided that, if any such items so clear too late on a business day to make such a transfer in accordance with such Collection Bank’s normal procedures, then such Collection Bank may make such transfer on the placement of a deed of trust or mortgage, as applicable, on any Mortgaged Property that has a priority equal to or higher than the lien securing the related Mortgage Loan unless such Mortgage Loan is prepaid in full. No partial release of a Mortgage Loan shall be made if it would cause the Loan-to-Value Ratio of the Mortgage Loan (taking into account the partial release) to be higher than the Loan-to-Value Ratio of the Mortgage Loan at origination.next succeeding business
Appears in 1 contract
Collection Procedures. The Master Servicer shall, to the extent such procedures shall be consistent with this Agreement, follow such collection procedures as it follows from time to time with respect to mortgage loans in its servicing portfolio that are comparable to the Mortgage Loans. A summary The Servicer shall not materially amend or modify these procedures, policies and practices with respect to the Mortgage Loans (other than as required by applicable laws and regulations) without the prior consent of the Master Servicer's collection procedures is attached hereto as Exhibit D. A written Note Insurer, and a copy of any such amendment or modification shall be furnished to the TrusteeIndenture Trustee and the Note Insurer. Consistent with the foregoing, the Master Servicer may in its discretion (1) waive any assumption fees, late payment charges, charges for checks returned for insufficient funds, prepayment fees, if any, or other fees that may be collected in the ordinary course of servicing the Mortgage Loans, (2) if a Mortgagor is in default or appears about to be in default because of a Mortgagor's financial condition, arrange with the Mortgagor a schedule for the payment of delinquent payments due on the related Mortgage Loan or (3) modify payments of monthly principal and interest on any Mortgage Loan becoming subject to the terms of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended (the "Relief Act"), in accordance with the Master Servicer's general policies for comparable mortgage loans subject to the Relief Act; provided, however, that the Master Servicer shall not, [without the prior written consent of the Bond Note Insurer,] , permit any waiver, modification or variance of a Mortgage Loan that which would (1) change the Note Mortgage Interest Rate, (2) forgive the payment of any principal or interest, (3) impair the priority of the lien represented by the related Mortgage, (4) the Servicer will not, without the Note Insurer's consent, (A) extend any Mortgage Loan more than once in a calendar year or (4B) grant more than three extensions with respect to any Mortgage Loan or (5) extend the final maturity date of the Mortgage Loan beyond _______ 20___December 25, 2030, in any case except to the extent required under the Relief ActAct unless (i) in its judgment, a material default on the Mortgage Loan has occurred or a payment default is reasonably foreseeable and (ii) in its judgment, such modification, waiver or amendment is reasonably likely to produce a greater recovery with respect to the Mortgage Loan on a present value basis than would liquidation; and provided further, that the Servicer shall not waive any Prepayment Charge provision included in a Mortgage Note unless the Servicer determines, in its best reasonable judgment, that the related Mortgagor will be in imminent default of all future payments of principal and interest under the terms of the related Mortgage Note. The Master Servicer will not consent to the placement of a deed of trust or mortgage, as applicable, on any Mortgaged Property that has a priority equal to or higher than the lien securing the related Mortgage Loan unless such Mortgage Loan is prepaid in full. No partial release of a Mortgage Loan shall be made if it would cause the Loan-to-Value Ratio or the Combined Loan-to-Value Ratio of the Mortgage Loan (taking into account the partial release) to be higher than the Loan-to-Value Ratio or the Combined Loan-to-Value Ratio of the Mortgage Loan at origination.
Appears in 1 contract
Collection Procedures. The Master Servicer (1) Borrower shall, as Lender’s agent, receive all cash, checks, notes, drafts, and other instruments (hereafter called “Payment Items”) representing the proceeds of accounts covered by this Agreement. Borrower shall, at Borrower’s own expense, take all reasonable and appropriate steps when necessary to enforce the extent such procedures collection of these Payment Items.
(2) Immediately upon receipt, Borrower shall deposit all Payment Items in a special bank account. These Payment Items shall be consistent deposited in the same form as received except for the addition of Borrower’s endorsement or assignment where necessary to permit collection of the items, which endorsement or assignment Borrower agrees to give (and in this connection, Borrower waives presentment, demand, notice of dishonor, protest, and all other notices related thereto), and in the event Borrower fails to do so. Lender will have the authority to endorse the Payment Items on Borrower’s behalf. Borrower agrees that Borrower shall not commingle any such payment Items with this Agreementany of Borrower’s other funds or property but shall hold them separate and apart therefrom upon an express trust for Lender.
(3) At any time requested by Lender and from time to time, follow Borrower shall deliver to Lender a complete list of all those liable on all Payment Items and any other matters as Lender may specify. Further, if Lender so requests, Borrower, at Borrower’s own expense, shall notify all those liable that their payments are to be made directly to Lender, and Borrower shall indicate on all invoices to such account debtors that the accounts are payable directly to Lender. If Lender so elects. Lender may itself, at Borrower’s expense, notify all those liable that they are to make their payments directly to Lender. Lender is authorized to enforce the collection procedures as of these accounts by any appropriate means it follows deems necessary.
(4) In order to assure collection of accounts in which Lender has a security interest hereunder, Lender may at any time and from time to time with respect notify the post office authorities to mortgage loans in its servicing portfolio that are comparable to the Mortgage Loans. A summary of the Master Servicer's collection procedures is attached hereto as Exhibit D. A written copy of any such amendment or modification shall be furnished to the Trustee. Consistent with the foregoing, the Master Servicer may in its discretion (1) waive any assumption fees, late payment charges, charges for checks returned for insufficient funds, prepayment fees, if any, or other fees that may be collected in the ordinary course of servicing the Mortgage Loans, (2) if a Mortgagor is in default or appears about to be in default because of a Mortgagor's financial condition, arrange with the Mortgagor a schedule for the payment of delinquent payments due on the related Mortgage Loan or (3) modify payments of monthly principal and interest on any Mortgage Loan becoming subject to the terms of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended (the "Relief Act"), in accordance with the Master Servicer's general policies for comparable mortgage loans subject to the Relief Act; provided, however, that the Master Servicer shall not, [without the prior written consent of the Bond Insurer,] permit any waiver, modification or variance of a Mortgage Loan that would (1) change the Note Rateaddress for delivery of mail addressed to Borrower to such address as Lender may designate, (2) forgive and Lender may open and dispose of such mail and receive the payment collections of any principal or interest, (3) impair accounts within the priority coverage of the lien represented by the related Mortgage or (4) extend the final maturity date of the Mortgage Loan beyond _______ 20___, in any case except to the extent required under the Relief Act. The Master Servicer will not consent to the placement of a deed of trust or mortgage, as applicable, on any Mortgaged Property that has a priority equal to or higher than the lien securing the related Mortgage Loan unless such Mortgage Loan is prepaid in full. No partial release of a Mortgage Loan shall be made if it would cause the Loan-to-Value Ratio of the Mortgage Loan (taking into account the partial release) to be higher than the Loan-to-Value Ratio of the Mortgage Loan at originationthis Agreement.
Appears in 1 contract
Sources: Security Agreement (Energytec Inc)
Collection Procedures. The Master Servicer (a) On or before the date hereof, Navistar Financial will establish a system of operations, accounts and instructions to the Concentration Bank, Collection Banks, Proceeds Account Banks, International, Dealers and Account Debtors, as provided in this Section. Navistar Financial shall, subject to the provisions of Section 4.13, (i) instruct any Account Debtor obligated to make payments under any Navistar Financial Receivable (other than any Navistar Financial Receivable referred to in clause (ii) below) to make such payments directly to a separate special purpose account of Navistar Financial maintained at a Proceeds Account Bank and containing only Proceeds (a “Proceeds Deposit Account”) and (ii) subject to the provisions of Section 4.13, instruct any Account Debtor obligated to make payments under any Navistar Financial Receivable referred to in clause (d) of the definition of Navistar Financial Receivables to make such payments (except to the extent such procedures that any Permitted Receivables Sale Agreement may require otherwise with respect to Receivables sold thereunder) to lock-boxes (the “Lock-boxes”) (in the case of any payments in the form of cash, checks, drafts and other instruments or items for the payment of money) and accounts (the “Collection Accounts”) (in the case of any payments made by wire transfer or similar electronic means) maintained by Navistar Financial with the Collection Banks. Payments on account of Wholesale Receivables shall be consistent paid to Lock-boxes and Collection Accounts which are separate from those to which payments on account of Retail Receivables are made. Navistar Financial shall, and shall request International and each Dealer to, pay forthwith into Lock-boxes and Collection Accounts, as appropriate, in the form received (or, in the case of any such payment received by wire transfer or similar electronic means, by such means), all payments on account of Wholesale Receivables and Retail Receivables received directly by Navistar Financial, International or any such Dealer; provided that any such payments received by International shall be deposited forthwith by International into the applicable retail suspense account of Navistar Financial (each such suspense account and each suspense account referred to in the next succeeding sentence, a “Suspense Account”) maintained by a Collection Bank. Navistar Financial shall instruct each Collection Bank to transfer by wire transfer or similar electronic means, on the same business day as received, all amounts deposited by wire transfer or similar electronic means into the wholesale or retail Collection Account maintained by such Collection Bank pursuant to this Section into a special purpose account of Navistar Financial maintained at the Concentration Bank (the “Proceeds Allocation Account”); provided that, if such Collection Bank receives any such amounts on a day that is not a business day, or too late on a business day to make such a transfer in accordance with such Collection Bank’s normal procedures, then such Collection Bank may make such transfer on the next succeeding business day. Navistar Financial shall instruct each Collection Bank (x) to deposit all cash, checks, drafts and other instruments or items for the payment of money paid into the wholesale or retail Lock-box (if any) maintained by such Collection Bank pursuant to this AgreementSection forthwith in the wholesale or retail Suspense Account of Navistar Financial, as appropriate, maintained by such Collection Bank (except that such Collection Bank may deal with items which are postdated, improperly endorsed or otherwise irregular in accordance with such Collection Bank’s usual procedures) and (y) to transfer by wire transfer or similar electronic means all cash, checks, drafts and other instruments or items deposited into any Suspense Account maintained by such Collection Bank to the Proceeds Allocation Account on the same business day as such items clear in accordance with such Collection Bank’s customary clearing schedule; provided that, if any such items so clear too late on a business day to make such a transfer in accordance with such Collection Bank’s normal procedures, then such Collection Bank may make such transfer on the next succeeding business day. Navistar Financial shall not deposit or, except as set forth above in this subsection (a), cause to be deposited any amount in any Proceeds Deposit Account. The Trustee is hereby directed to instruct the Concentration Bank to follow the instructions of Navistar Financial given pursuant to this subsection (a). Navistar Financial shall instruct the Concentration Bank to retain all amounts transferred into the Proceeds Allocation Account in such collection account until they have been identified by Navistar Financial, either by actual identification or, so long as no Notice of Acceleration is in effect, by reasonable estimation in accordance with Navistar Financial’s usual procedures, as (i) Sold Collections, (ii) Retained Collections or (iii) other amounts. Upon such identification, (w) Navistar Financial shall provide prompt notice thereof to the Concentration Bank and the Trustee, (x) Retained Collections shall be transferred forthwith to a Proceeds Deposit Account, (y) Sold Collections shall be transferred in accordance with the terms under which the underlying Receivables were sold and (z) other amounts shall be transferred in accordance with Navistar Financial’s usual procedures. Such identification by Navistar Financial shall be effected as soon as reasonably practicable. Navistar Financial shall not permit any Proceeds to remain in any account described in this subsection (a) (other than any such account that is a UCC Deposit Account) more than 10 days after receipt of such Proceeds by a Collection Bank. If, notwithstanding the foregoing, the Trustee or any Purchaser shall in good faith challenge Navistar Financial’s identification of any item of payment or shall in good faith challenge any of Navistar Financial’s formulas for allocating items of payment, Deloitte & Touche LLP (or such other accounting firm as shall be acceptable to Navistar Financial, such Purchaser and the Trustee), at Navistar Financial’s expense, shall determine the proper identification of such item of payment or the propriety of such allocation formula. If any such determination shall result in additional amounts being transferable to a Proceeds Deposit Account with respect to any such item of payment, Navistar Financial shall promptly so transfer such additional amounts and, if it has been determined that Navistar Financial’s formula for allocation was in error, the proper allocation formula shall thereafter be applied to allocate items of payment, subject to any subsequent revision as provided herein. No such determination shall prevent Navistar Financial, the Trustee or any Purchaser from litigating a claim to a greater portion of such funds. Navistar Financial will use all reasonable efforts to cause International and each Account Debtor, Dealer, Proceeds Account Bank and Collection Bank to comply with the foregoing procedures and instructions; provided that the failure of any of them so to comply shall not constitute a breach of this subsection.
(b) The name in which such Lock-boxes, Collection Accounts, Suspense Accounts and Proceeds Allocation Account are carried shall clearly indicate that (i) certain of the items and funds deposited therein are the property of Navistar Financial subject to the Trustee’s Security Interest and (ii) certain other items and funds deposited therein are the property of one or more other Persons. The name in which each Proceeds Deposit Account is carried shall reflect the fact that all items and funds deposited therein are the property of Navistar Financial subject to the Trustee’s Security Interest hereunder. The instructions governing such Lock-boxes and accounts shall not be altered in any material manner which is inconsistent with any Secured Instrument or which could reasonably be expected to adversely affect the Trustee, any Secured Party or any other holder of a Secured Obligation without the prior consent of the Required Secured Parties.
(c) Not later than the date hereof, as it follows to (i) any Lock-box, Suspense Account or Collection Account with a Collection Bank established on or before the date hereof and (ii) any Proceeds Deposit Account with a Proceeds Account Bank established on or before the date hereof, and prior to establishing any such lock-boxes and accounts with any bank after the date hereof, Navistar Financial will cause such bank to deliver a writing to the Trustee confirming that the bank in question has received the instructions and established the relevant accounts and procedures referred to in this Section. Navistar Financial may, from time to time with respect after the date hereof, designate a bank to mortgage loans act as a Collection Bank or a Proceeds Account Bank and such bank shall become a Collection Bank or a Proceeds Account Bank for purposes of this Agreement, provided that (i) such bank is located in its servicing portfolio that are comparable one of the 48 contiguous states in which Article 9 of the Uniform Commercial Code (Secured Transactions) is in effect, (ii) such bank has delivered a writing to the Mortgage Loans. A summary Trustee confirming the matters set forth in the first sentence of this subsection (c), and (iii) Navistar Financial has delivered to the Master Servicer's collection procedures Trustee an amended Schedule B or C, setting forth the then current list of Collection Banks or Proceeds Account Banks, as the case may be.
(d) Unless a Proceeds Account Bank has received notice from the Trustee that a Notice of Acceleration is attached hereto as Exhibit D. A written copy in effect, Navistar Financial shall be entitled to instruct such Proceeds Account Bank to transfer amounts held in a Proceeds Deposit Account maintained with such bank to or upon the order of Navistar Financial, whereupon, unless such amounts are deposited in a UCC Deposit Account, the Trustee’s Security Interest in such amounts (but not in any property or rights concurrently or subsequently acquired by Navistar Financial in consideration of Navistar Financial’s payment of any such amendment or modification amounts) shall be furnished cease immediately without any further action on the part of the Trustee; provided that Navistar Financial shall not instruct any Proceeds Account Bank to transfer funds from a Proceeds Deposit Account to any other bank account maintained by Navistar Financial which is not a Proceeds Deposit Account except to facilitate the prompt application thereof in Navistar Financial’s business. After receiving notice from the Trustee that a Notice of Acceleration is in effect, each Proceeds Account Bank shall immediately and from time to time thereafter (unless it receives notice from the Trustee stating that such Notice of Acceleration is no longer in effect) transfer all funds held in its Proceeds Deposit Account to the Trustee. Consistent with the foregoing, the Master Servicer may in its discretion (1) waive any assumption fees, late payment charges, charges Trustee for checks returned for insufficient funds, prepayment fees, if any, or other fees that may be collected deposit in the ordinary course Collateral Account and shall notify the Trustee by facsimile transmission as to the details of servicing the Mortgage Loans, each such transfer.
(2e) if Unless a Mortgagor Notice of Acceleration is in default or appears about to be in default because of a Mortgagor's financial conditioneffect, arrange with the Mortgagor a schedule for the payment of delinquent payments due on the related Mortgage Loan or (3) modify payments of monthly principal Navistar Financial will, at its expense and interest on any Mortgage Loan becoming subject to the terms of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended (the "Relief Act"), in accordance with its normal commercial practices, for the Master Servicer's general policies for comparable mortgage loans subject benefit of the Trustee:
(i) ask for, demand, ▇▇▇ for, collect or cause to be collected from the Account Debtor or Account Debtors on each Navistar Financial Receivable, as and when due, any and all amounts, including interest, owing under or on account of such Navistar Financial Receivable;
(ii) compromise and settle any dispute related to any Navistar Financial Receivable; and
(iii) take or cause to be taken such action to repossess goods securing any Navistar Financial Receivable, or to enforce any rights or liens arising thereunder and to dispose of such repossessed goods as Navistar Financial may deem proper; provided that Navistar Financial will not be required to take any action under this subsection which would be contrary to any applicable law or court order.
(f) Not later than the date hereof, the Trustee will cause the Concentration Bank to deliver a writing to the Relief Act; providedTrustee and Navistar Financial, however, confirming that the Master Servicer Concentration Bank has received the instructions of the Trustee and Navistar Financial referred to in subsection (a) of this Section. The Concentration Bank may at any time, by giving written notice to the Trustee and Navistar Financial, resign its position as the Trustee’s agent and be discharged of its responsibilities hereunder, such resignation to be effective upon the appointment by the Trustee of a successor Concentration Bank (which Navistar Financial shall nothave the right to designate) and the acceptance of such appointment by such successor Concentration Bank. If no successor Concentration Bank shall be appointed and shall have accepted such appointment within 30 days after the Concentration Bank gives the aforesaid notice of resignation, [without the prior written Trustee may appoint a successor Concentration Bank with the consent of Navistar Financial or apply to any court of competent jurisdiction to appoint a successor Concentration Bank. Upon the Bond Insurer,] permit any waiverinstruction of Navistar Financial, modification or variance the Trustee shall, upon ten days’ prior notice, remove the Concentration Bank and appoint as its agent a successor Concentration Bank designated by Navistar Financial, provided that such successor Concentration Bank shall have accepted such appointment and delivered a writing to the Trustee and Navistar Financial confirming the matters set forth in the first sentence of this subsection (f). Any successor Concentration Bank shall be a bank (i) located in one of the 48 contiguous states in which Article 9 of the Uniform Commercial Code (Secured Transactions) is in effect and in a state in which Section 9-306 of the Uniform Commercial Code provides for continuous perfection of a Mortgage Loan that would security interest in separate deposit accounts containing only proceeds and (1ii) change the Note Ratehaving capital, (2) forgive the payment surplus and undivided profits of any principal at least $250,000,000 if there be such a bank with such capital, surplus and undivided profits willing, qualified and able to act as Concentration Bank upon reasonable or interest, (3) impair the priority of the lien represented by the related Mortgage or (4) extend the final maturity date of the Mortgage Loan beyond _______ 20___, in any case except to the extent required under the Relief Act. The Master Servicer will not consent to the placement of a deed of trust or mortgage, as applicable, on any Mortgaged Property that has a priority equal to or higher than the lien securing the related Mortgage Loan unless such Mortgage Loan is prepaid in full. No partial release of a Mortgage Loan shall be made if it would cause the Loan-to-Value Ratio of the Mortgage Loan (taking into account the partial release) to be higher than the Loan-to-Value Ratio of the Mortgage Loan at originationcustomary terms.
Appears in 1 contract
Sources: Security, Pledge and Trust Agreement (Navistar Financial Corp)
Collection Procedures. The Master Servicer shall, to the extent such procedures shall be consistent with this Agreement, follow such collection procedures as it follows from time to time with respect to mortgage loans in its servicing portfolio that are comparable to the Mortgage Loans. A summary of the Master Servicer's collection procedures is attached hereto as Exhibit D. A written The Servicer shall not amend or modify these procedures, policies and practices with respect to the Mortgage Loans (other than as required by applicable laws and regulations) without the prior consent of the Bond Insurer, and a copy of any such amendment or modification shall be furnished to the Indenture Trustee. Consistent with the foregoing, the Master Servicer may in its discretion (1) waive any assumption fees, late payment charges, charges for checks returned for insufficient funds, prepayment fees, if any, or other fees that may be collected in the ordinary course of servicing the Mortgage Loans, (2) if a Mortgagor is in default or appears about to be in default because of a Mortgagor's financial condition, arrange with the Mortgagor a schedule for the payment of delinquent payments due on the related Mortgage Loan or (3) modify payments of monthly principal and interest on any Mortgage Loan becoming subject to the terms of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended (the "Relief Act"), in accordance with the Master Servicer's general policies for comparable mortgage loans subject to the Relief Act; provided, however, that the Master Servicer shall not, [without the prior written consent of the Bond Insurer,] , permit any waiver, modification or variance of a Mortgage Loan that which would (1) change the Note Mortgage Interest Rate, (2) forgive the payment of any principal or interest, (3) impair the priority of the lien represented by the related Mortgage or (4) extend the final maturity date of the Mortgage Loan beyond _______ 20___March 2028, in any case except to the extent required under the Relief Act. The Master Servicer will not consent to the placement of a deed of trust or mortgage, as applicable, on any Mortgaged Property that has a priority equal to or higher than the lien securing the related Mortgage Loan unless such Mortgage Loan is prepaid in full. No partial release of a Mortgage Loan shall be made if it would cause the Loan-to-Value Ratio of the Mortgage Loan (taking into account the partial release) to be higher than the Loan-to-Value Ratio of the Mortgage Loan at origination.
Appears in 1 contract
Sources: Servicing Agreement (Fund America Investors Corp Ii)
Collection Procedures. The Master Servicer shall, to the extent such procedures shall be consistent with this Agreement, follow such collection procedures as it follows from time to time with respect to mortgage loans Home Loans in its servicing portfolio that are comparable to the Mortgage Home Loans. A summary The Servicer shall not amend or modify these procedures, policies and practices with respect to the Home Loans (other than as required by applicable laws and regulations) without the prior consent of the Note Insurer and the Master Servicer's collection procedures is attached hereto as Exhibit D. A written , and a copy of any such amendment or modification shall be furnished to the Indenture Trustee. Consistent with the foregoing, the Master Servicer may in its discretion (1) waive any assumption fees, late payment charges, charges for checks returned for insufficient funds, prepayment fees, if any, or other fees that may be collected in the ordinary course of servicing the Mortgage Home Loans, (2) if a Mortgagor an Obligor is in default or appears about to be in default because of a Mortgagoran Obligor's financial condition, arrange with the Mortgagor Obligor a schedule for the payment of delinquent payments due on the related Mortgage Home Loan or (3) modify payments of monthly principal and interest on any Mortgage Home Loan becoming subject to the terms of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended (the "Relief Act"), in accordance with the Master Servicer's general policies for comparable mortgage loans Home Loans subject to the Relief Act; providedPROVIDED, howeverHOWEVER, that the Master Servicer shall not, [without the prior written consent of the Bond Note Insurer,] , permit any waiver, modification or variance of a Mortgage Home Loan that would (1) change the Note Rate, (2) forgive the payment of any principal or interest, (3) impair the priority of the lien represented by the related Mortgage or (4) extend the final maturity date of the Mortgage Loan beyond _______ 20___, in any case except to the extent required unless permitted under the Relief ActSection 2.04. The Master Servicer will not consent to the placement of a deed of trust or mortgage, as applicable, on any Mortgaged Property that has a priority equal to or higher than the lien securing the related Mortgage Home Loan unless such Mortgage Home Loan is prepaid in full. No partial release of a Mortgage Home Loan shall be made if it would cause the current Combined Loan-to-Value Ratio of the Mortgage Home Loan (taking into account the partial release) to be higher than the original Combined Loan-to-Value Ratio of the Mortgage Loan at originationHome Loan.
Appears in 1 contract
Sources: Servicing Agreement (Financial Asset Securities Corp)
Collection Procedures. The Master Servicer (a) On or before the date hereof, Navistar Financial will establish a system of operations, accounts and instructions to the Concentration Bank, Collection Banks, Proceeds Account Banks, International, Dealers and Account Debtors, as provided in this Section. Navistar Financial shall, subject to the provisions of Section 4.13, (i) instruct any Account Debtor obligated to make payments under any Navistar Financial Receivable (other than any Navistar Financial Receivable referred to in clause (ii) below) to make such payments directly to a separate special purpose account of Navistar Financial maintained at a Proceeds Account Bank and containing only Proceeds (a “Proceeds Deposit Account”) and (ii) subject to the provisions of Section 4.13, instruct any Account Debtor obligated to make payments under any Navistar Financial Receivable referred to in clause (d) of the definition of Navistar Financial Receivables to make such payments (except to the extent such procedures mat any Permitted Receivables Sale Agreement may require otherwise with respect to Receivables sold thereunder) to lock-boxes (the “Lock-boxes”) (in the case of any payments in the form of cash, checks, drafts and other instruments or items for the payment of money) and accounts (the “Collection Accounts”) (in the case of any payments made by wire transfer or similar electronic means) maintained by Navistar Financial with the Collection Banks. Payments on account of Wholesale Receivables shall be consistent paid to Lock-boxes and Collection Accounts which are separate from those to which payments on account of Retail Receivables are made. Navistar Financial shall, and shall request International and each Dealer to, pay forthwith into Lock-boxes and Collection Accounts, as appropriate, in the form received (or, in the case of any such payment received by wire transfer or similar electronic means, by such means), all payments on account of Wholesale Receivables and Retail Receivables received directly by Navistar Financial, International or any such Dealer; provided that any such payments received by International shall be deposited forthwith by International into the applicable retail suspense account of Navistar Financial (each such suspense account and each suspense account referred to in the next succeeding sentence, a “Suspense Account”) maintained by a Collection Bank. Navistar Financial shall instruct each Collection Bank to transfer by wire transfer or similar electronic means, on the same business day as received, all amounts deposited by wire transfer or similar electronic means into the wholesale or retail Collection Account maintained by such Collection Bank pursuant to this Section into a special purpose account of Navistar Financial maintained at the Concentration Bank (the “Proceeds Allocation Account”); provided that, if such Collection Bank receives any such amounts on a day that is not a business day, or too late on a business day to make such a transfer in accordance with such Collection Bank’s normal procedures, then such Collection Bank may make such transfer on the next succeeding business day. Navistar Financial shall instruct each Collection Bank (x) to deposit all cash, checks, drafts and other instruments or items for the payment of money paid into the wholesale or retail Lock-box (if any) maintained by such Collection Bank pursuant to this AgreementSection forthwith in the wholesale or retail Suspense Account of Navistar Financial, as appropriate, maintained by such Collection Bank (except that such Collection Bank may deal with items which are postdated, improperly endorsed or otherwise irregular in accordance with such Collection Bank’s usual procedures) and (y) to transfer by wire transfer or similar electronic means all cash, checks, drafts and other instruments or items deposited into any Suspense Account maintained by such Collection Bank to the Proceeds Allocation Account on the same business day as such items clear in accordance with such Collection Bank’s customary clearing schedule; provided that, if any such items so clear too late on a business day to make such a transfer in accordance with such Collection Bank’s normal procedures, then such Collection Bank may make such transfer on the next succeeding business day. Navistar Financial shall not deposit or, except as set forth above in this subsection (a), cause to be deposited any amount in any Proceeds Deposit Account. The Trustee is hereby directed to instruct the Concentration Bank to follow the instructions of Navistar Financial given pursuant to this subsection (a). Navistar Financial shall instruct the Concentration Bank to retain all amounts transferred into the Proceeds Allocation Account in such collection account until they have been identified by Navistar Financial, either by actual identification or, so long as no Notice of Acceleration is in effect, by reasonable estimation in accordance with Navistar Financial’s usual procedures, as (i) Sold Collections, (ii) Retained Collections or (iii) other amounts. Upon such identification, (w) Navistar Financial shall provide prompt notice thereof to the Concentration Bank and the Trustee, (x) Retained Collections shall be transferred forthwith to a Proceeds Deposit Account, (y) Sold Collections shall be transferred in accordance with the terms under which the underlying Receivables were sold and (z) other amounts shall be transferred in accordance with Navistar Financial’s usual procedures. Such identification by Navistar Financial shall be effected as soon as reasonably practicable. Navistar Financial shall not permit any Proceeds to remain in any account described in this subsection (a) (other than any such account that is a UCC Deposit Account) more than 10 days after receipt of such Proceeds by a Collection Bank. If, notwithstanding the foregoing, the Trustee or any Purchaser shall in good faith challenge Navistar Financial’s identification of any item of payment or shall in good faith challenge any of Navistar Financial’s formulas for allocating items of payment, Deloitte & Touche LLP (or such other accounting firm as shall be acceptable to Navistar Financial, such Purchaser and the Trustee), at Navistar Financial’s expense, shall determine the proper identification of such item of payment or the propriety of such allocation formula. If any such determination shall result in additional amounts being transferable to a Proceeds Deposit Account with respect to any such item of payment, Navistar Financial shall promptly so transfer such additional amounts and, if it has been determined that Navistar Financial’s formula for allocation was in error, the proper allocation formula shall thereafter be applied to allocate items of payment, subject to any subsequent revision as provided herein. No such determination shall prevent Navistar Financial, the Trustee or any Purchaser from litigating a claim to a greater portion of such funds. Navistar Financial will use all reasonable efforts to cause International and each Account Debtor, Dealer, Proceeds Account Bank and Collection Bank to comply with the foregoing procedures and instructions; provided that the failure of any of them so to comply shall not constitute a breach of this subsection.
(b) The name in which such Lock-boxes, Collection Accounts, Suspense Accounts and Proceeds Allocation Account are carried shall clearly indicate that (i) certain of the items and funds deposited therein are the property of Navistar Financial subject to the Trustee’s Security Interest and (ii) certain other items and funds deposited therein are the property of one or more other Persons. The name in which each Proceeds Deposit Account is carried shall reflect the fact that all items and funds deposited therein are the property of Navistar Financial subject to the Trustee’s Security Interest hereunder. The instructions governing such Lock-boxes and accounts shall not be altered in any material manner which is inconsistent with any Secured Instrument or which could reasonably be expected to adversely affect the Trustee, any Secured Party or any other holder of a Secured Obligation without the prior consent of the Required Secured Parties.
(c) Not later than the date hereof, as it follows to (i) any Lock-box, Suspense Account or Collection Account with a Collection Bank established on or before the date hereof and (ii) any Proceeds Deposit Account with a Proceeds Account Bank established on or before the date hereof, and prior to establishing any such lock-boxes and accounts with any bank after the date hereof, Navistar Financial will cause such bank to deliver a writing to the Trustee confirming that the bank in question has received the instructions and established the relevant accounts and procedures referred to in this Section. Navistar Financial may, from time to time with respect after the date hereof, designate a bank to mortgage loans act as a Collection Bank or a Proceeds Account Bank and such bank shall become a Collection Bank or a Proceeds Account Bank for purposes of this Agreement, provided that (i) such bank is located in its servicing portfolio that are comparable one of the 48 contiguous states in which Article 9 of the Uniform Commercial Code (Secured Transactions) is in effect, (ii) such bank has delivered a writing to the Mortgage Loans. A summary Trustee confirming the matters set forth in the first sentence of this subsection (c), and (iii) Navistar Financial has delivered to the Master Servicer's collection procedures Trustee an amended Schedule B or C, setting forth the then current list of Collection Banks or Proceeds Account Banks, as the case may be.
(d) Unless a Proceeds Account Bank has received notice from the Trustee that a Notice of Acceleration is attached hereto as Exhibit D. A written copy in effect, Navistar Financial shall be entitled to instruct such Proceeds Account Bank to transfer amounts held in a Proceeds Deposit Account maintained with such bank to or upon the order of Navistar Financial, whereupon, unless such amounts are deposited in a UCC Deposit Account, the Trustee’s Security Interest in such amounts (but not in any property or rights concurrently or subsequently acquired by Navistar Financial in consideration of Navistar Financial’s payment of any such amendment or modification amounts) shall be furnished cease immediately without any further action on the part of the Trustee; provided that Navistar Financial shall not instruct any Proceeds Account Bank to transfer funds from a Proceeds Deposit Account to any other bank account maintained by Navistar Financial which is not a Proceeds Deposit Account except to facilitate the prompt application thereof in Navistar Financial’s business. After receiving notice from the Trustee that a Notice of Acceleration is in effect, each Proceeds Account Bank shall immediately and from time to time thereafter (unless it receives notice from the Trustee stating that such Notice of Acceleration is no longer in effect) transfer all funds held in its Proceeds Deposit Account to the Trustee. Consistent with the foregoing, the Master Servicer may in its discretion (1) waive any assumption fees, late payment charges, charges Trustee for checks returned for insufficient funds, prepayment fees, if any, or other fees that may be collected deposit in the ordinary course Collateral Account and shall notify the Trustee by facsimile transmission as to the details of servicing the Mortgage Loans, each such transfer.
(2e) if Unless a Mortgagor Notice of Acceleration is in default or appears about to be in default because of a Mortgagor's financial conditioneffect, arrange with the Mortgagor a schedule for the payment of delinquent payments due on the related Mortgage Loan or (3) modify payments of monthly principal Navistar Financial will, at its expense and interest on any Mortgage Loan becoming subject to the terms of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended (the "Relief Act"), in accordance with its normal commercial practices, for the Master Servicer's general policies for comparable mortgage loans subject benefit of the Trustee:
(i) ask for, demand, ▇▇▇ for, collect or cause to be collected from the Account Debtor or Account Debtors on each Navistar Financial Receivable, as and when due, any and all amounts, including interest, owing under or on account of such Navistar Financial Receivable;
(ii) compromise and settle any dispute related to any Navistar Financial Receivable; and
(iii) take or cause to be taken such action to repossess goods securing any Navistar Financial Receivable, or to enforce any rights or liens arising thereunder and to dispose of such repossessed goods as Navistar Financial may deem proper; provided that Navistar Financial will not be required to take any action under this subsection which would be contrary to any applicable law or court order.
(f) Not later than the date hereof, the Trustee will cause the Concentration Bank to deliver a writing to the Relief Act; providedTrustee and Navistar Financial, however, confirming that the Master Servicer Concentration Bank has received the instructions of the Trustee and Navistar Financial referred to in subsection (a) of this Section. The Concentration Bank may at any time, by giving written notice to the Trustee and Navistar Financial, resign its position as the Trustee’s agent and be discharged of its responsibilities hereunder, such resignation to be effective upon the appointment by the Trustee of a successor Concentration Bank (which Navistar Financial shall nothave the right to designate) and the acceptance of such appointment by such successor Concentration Bank. If no successor Concentration Bank shall be appointed and shall have accepted such appointment within 30 days after the Concentration Bank gives the aforesaid notice of resignation, [without the prior written Trustee may appoint a successor Concentration Bank with the consent of Navistar Financial or apply to any court of competent jurisdiction to appoint a successor Concentration Bank. Upon the Bond Insurer,] permit any waiverinstruction of Navistar Financial, modification or variance the Trustee shall, upon ten days’ prior notice, remove the Concentration Bank and appoint as its agent a successor Concentration Bank designated by Navistar Financial, provided that such successor Concentration Bank shall have accepted such appointment and delivered a writing to the Trustee and Navistar Financial confirming the matters set forth in the first sentence of this subsection (f). Any successor Concentration Bank shall be a bank (i) located in one of the 48 contiguous states in which Article 9 of the Uniform Commercial Code (Secured Transactions) is in effect and in a state in which Section 9-306 of the Uniform Commercial Code provides for continuous perfection of a Mortgage Loan that would security interest in separate deposit accounts containing only proceeds and (1ii) change the Note Ratehaving capital, (2) forgive the payment surplus and undivided profits of any principal at least $250,000,000 if there be such a bank with such capital, surplus and undivided profits willing, qualified and able to act as Concentration Bank upon reasonable or interest, (3) impair the priority of the lien represented by the related Mortgage or (4) extend the final maturity date of the Mortgage Loan beyond _______ 20___, in any case except to the extent required under the Relief Act. The Master Servicer will not consent to the placement of a deed of trust or mortgage, as applicable, on any Mortgaged Property that has a priority equal to or higher than the lien securing the related Mortgage Loan unless such Mortgage Loan is prepaid in full. No partial release of a Mortgage Loan shall be made if it would cause the Loan-to-Value Ratio of the Mortgage Loan (taking into account the partial release) to be higher than the Loan-to-Value Ratio of the Mortgage Loan at originationcustomary terms.
Appears in 1 contract
Collection Procedures. The Master Servicer shall deposit all Collections received in connection with the sale or other disposition of Purchased Inventory, including any sale of Receivables arising therefrom, on the date of receipt thereof by the Servicer into the Cash Received Account. The funds deposited into the Cash Received Account shall be applied by the Servicer as follows:
(a) If there shall be in existence a Trust Agreement Event of Default, all funds in the Cash Received Account shall be remitted by the Servicer on a daily basis to the Collateral Agent or otherwise paid as the Collateral Agent may in writing direct;
(b) Subject to the provisions of SECTION 3.2(a) above, if LTV Steel or an Affiliate of LTV Steel is not then the Servicer, to the payment of all amounts then due and owing to the Servicer;
(c) Subject to the provisions of SECTION 3.2(e) below, on each date on which there shall be in existence a Liquidity Shortfall Amount, the Servicer shall, upon receipt of a Liquidity Shortfall Notice, transfer all amounts on deposit in the Cash Received Account to the extent such procedures Collateral Agent for deposit in the Liquidity Account until the Collateral Agent has notified the Servicer that there shall no longer be consistent with this Agreement, follow such collection procedures as it follows from time to time in existence a Liquidity Shortfall Amount;
(d) If the Amortization Date with respect to mortgage loans in its servicing portfolio that are comparable any Note shall have occurred, on each of the first fifteen Business Days following such Amortization Date, the Servicer shall remit to the Mortgage Loans. A summary Collateral Agent an amount equal to 1/15th of the Master Servicer's collection procedures is attached hereto Amortization Amount as Exhibit D. A written copy last indicated by the Collateral Agent to the Servicer as required by SECTION 8.02(b) of the Trust Agreement. If on any such amendment or modification Business Day there shall not be furnished sufficient funds in the Cash Received Account to make such transfer to the Trustee. Consistent with the foregoingCollateral Agent, the Master Servicer may shall on each subsequent Business Day transfer the entire balance in its discretion the Cash Received Account to the Collateral Agent until such time as the aggregate amount so transferred equals the amount required to have been transferred under the operation of the first sentence of this subparagraph (1d).
(e) waive Notwithstanding any assumption fees, late payment charges, charges for checks returned for insufficient funds, prepayment feesother provisions of this Agreement or any other Transaction Document, if anythe Servicer receives a Debt Service Shortfall Notice from the Collateral Agent, or other fees that may be collected the Servicer shall transfer all amounts in the ordinary course of servicing the Mortgage Loans, (2) if a Mortgagor is in default or appears about to be in default because of a Mortgagor's financial condition, arrange with the Mortgagor a schedule for the payment of delinquent payments due on the related Mortgage Loan or (3) modify payments of monthly principal and interest on any Mortgage Loan becoming subject Cash Received Account to the terms Collateral Agent on each Business Day for deposit in the Note Account until such time as the Collateral Agent has notified the Servicer that no Debt Service Shortfall Amount exists.
(f) On each Business Day, after making the transfers required above, the Servicer shall transfer the balance of funds in the Soldiers' and Sailors' Civil Relief Act of 1940, as amended (the "Relief Act"), in accordance with the Master Servicer's general policies for comparable mortgage loans subject Cash Received Account to the Relief Act; provided, however, that the Master Servicer shall not, [without the prior written consent of the Bond Insurer,] permit any waiver, modification or variance of a Mortgage Loan that would (1) change the Note Rate, (2) forgive the payment of any principal or interest, (3) impair the priority of the lien represented by the related Mortgage or (4) extend the final maturity date of the Mortgage Loan beyond _______ 20___, in any case except to the extent required under the Relief Act. The Master Servicer will not consent to the placement of a deed of trust or mortgage, as applicable, on any Mortgaged Property that has a priority equal to or higher than the lien securing the related Mortgage Loan unless such Mortgage Loan is prepaid in full. No partial release of a Mortgage Loan shall be made if it would cause the Loan-to-Value Ratio of the Mortgage Loan (taking into account the partial release) to be higher than the Loan-to-Value Ratio of the Mortgage Loan at originationInventory Purchase Account.
Appears in 1 contract
Sources: Inventory Processing and Servicing Agreement (LTV Corp)
Collection Procedures. The Master Servicer shall, to the extent such ---------------------- procedures shall be consistent with this Agreement, follow such collection procedures as it follows from time to time with respect to mortgage loans Home Loans in its servicing portfolio that are comparable to the Mortgage Home Loans. A summary The Servicer shall not amend or modify these procedures, policies and practices with respect to the Home Loans (other than as required by applicable laws and regulations) without the prior consent of the Note Insurer and the Master Servicer's collection procedures is attached hereto as Exhibit D. A written , and a copy of any such amendment or modification shall be furnished to the Indenture Trustee. Consistent with the foregoing, the Master Servicer may in its discretion (1) waive any assumption fees, late payment charges, charges for checks returned for insufficient funds, prepayment fees, if any, or other fees that may be collected in the ordinary course of servicing the Mortgage Home Loans, (2) if a Mortgagor an Obligor is in default or appears about to be in default because of a Mortgagoran Obligor's financial condition, arrange with the Mortgagor Obligor a schedule for the payment of delinquent payments due on the related Mortgage Home Loan or (3) modify payments of monthly principal and interest on any Mortgage Home Loan becoming subject to the terms of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended (the "Relief Act"), in accordance with the Master Servicer's general policies for comparable mortgage loans Home Loans subject to the Relief Act; provided, however, that the Master Servicer shall not, [without the prior written consent of the Bond Note Insurer,] , permit any waiver, modification or variance of a Mortgage Home Loan that would (1) change the Note Rate, (2) forgive the payment of any principal or interest, (3) impair the priority of the lien represented by the related Mortgage or (4) extend the final maturity date of the Mortgage Loan beyond _______ 20___, in any case except to the extent required unless permitted under the Relief ActSection 2.04. The Master Servicer will not consent to the placement of a deed of trust or mortgage, as applicable, on any Mortgaged Property that has a priority equal to or higher than the lien securing the related Mortgage Home Loan unless such Mortgage Home Loan is prepaid in full. No partial release of a Mortgage Home Loan shall be made if it would cause the current Combined Loan-to-Value Ratio of the Mortgage Home Loan (taking into account the partial release) to be higher than the original Combined Loan-to-Value Ratio of the Mortgage Loan at originationHome Loan.
Appears in 1 contract
Sources: Servicing Agreement (Ocwen Mortgage Loan Trust Ass Back Notes Ser 1998-Oac1/)
Collection Procedures. The Master Servicer (a) On or before the date hereof, Navistar Financial will establish a system of operations, accounts and instructions to the Concentration Bank, Collection Banks, Proceeds Account Banks, International, Dealers and Account Debtors, as provided in this Section. Navistar Financial shall, subject to the provisions of Section 4.13, (i) instruct any Account Debtor obligated to make payments under any Navistar Financial Receivable (other than any Navistar Financial Receivable referred to in clause (ii) below) to make such payments directly to a separate special purpose account of Navistar Financial maintained at a Proceeds Account Bank and containing only Proceeds (a "Proceeds Deposit Account") and (ii) subject to the provisions of Section 4.13, instruct any Account Debtor obligated to make payments under any Navistar Financial Receivable referred to in clause (d) of the definition of Navistar Financial Receivables to make such payments (except to the extent such procedures that any Permitted Receivables Sale Agreement may require otherwise with respect to Receivables sold thereunder) to lock-boxes (the "Lock-boxes") (in the case of any payments in the form of cash, checks, drafts and other instruments or items for the payment of money) and accounts (the "Collection Accounts") (in the case of any payments made by wire transfer or similar electronic means) maintained by Navistar Financial with the Collection Banks. Payments on account of Wholesale Receivables shall be consistent paid to Lock-boxes and Collection Accounts which are separate from those to which payments on account of Retail Receivables are made. Navistar Financial shall, and shall request International and each Dealer to, pay forthwith into Lock-boxes and Collection Accounts, as appropriate, in the form received (or, in the case of any such payment received by wire transfer or similar electronic means, by such means), all payments on account of Wholesale Receivables and Retail Receivables received directly by Navistar Financial, International or any such Dealer; provided that payments received by International as contemplated by the proviso to the second preceding sentence shall be deposited forthwith by International into the applicable retail suspense account of International (each such suspense account and each suspense account referred to in the next succeeding sentence, a "Suspense Account") maintained by a Collection Bank. Navistar Financial shall instruct each Collection Bank to transfer by wire transfer or similar electronic means, on the same business day as received, all amounts deposited by wire transfer or similar electronic means into the wholesale or retail Collection Account maintained by such Collection Bank pursuant to this Section into a special purpose account of Navistar Financial maintained at the Concentration Bank (the "Proceeds Allocation Account"); provided that, if such Collection Bank receives any such amounts on a day that is not a business day, or too late on a business day to make such a transfer in accordance with such Collection Bank's normal procedures, then such Collection Bank may make such transfer on the next succeeding business day. Navistar Financial shall instruct each Collection Bank (x) to deposit all cash, checks, drafts and other instruments or items for the payment of money paid into the wholesale or retail Lock-box (if any) maintained by such Collection Bank pursuant to this AgreementSection forthwith in the wholesale or retail Suspense Account of Navistar Financial, as appropriate, maintained by such Collection Bank (except that such Collection Bank may deal with items which are postdated, improperly endorsed or otherwise irregular in accordance with such Collection Bank's usual procedures) and (y) to transfer by wire transfer or similar electronic means all cash, checks, drafts and other instruments or items deposited into any Suspense Account maintained by such Collection Bank to the Proceeds Allocation Account on the same business day as such items clear in accordance with such Collection Bank's customary clearing schedule; provided that, if any such items so clear too late on a business day to make such a transfer in accordance with such Collection Bank's normal procedures, then such Collection Bank may make such transfer on the next succeeding business day. Navistar Financial shall not deposit or, except as set forth above in this subsection (a), cause to be deposited any amount in any Proceeds Deposit Account. The Trustee is hereby directed to instruct the Concentration Bank to follow the instructions of Navistar Financial given pursuant to this subsection (a). Navistar Financial shall instruct the Concentration Bank to retain all amounts transferred into the Proceeds Allocation Account in such collection account until they have been identified by Navistar Financial, either by actual identification or, so long as no Notice of Acceleration is in effect, by reasonable estimation in accordance with Navistar Financial's usual procedures, as (i) Sold Collections, (ii) Retained Collections or (iii) other amounts. Upon such identification, (w) Navistar Financial shall provide prompt notice thereof to the Concentration Bank and the Trustee, (x) Retained Collections shall be transferred forthwith to a Proceeds Deposit Account, (y) Sold Collections shall be transferred in accordance with the terms under which the underlying Receivables were sold and (z) other amounts shall be transferred in accordance with Navistar Financial's usual procedures. Such identification by Navistar Financial shall be effected as soon as reasonably practicable. Navistar Financial shall not permit any Proceeds to remain in any account described in this subsection (a) (other than any such account that is a UCC Deposit Account) more than 10 days after receipt of such Proceeds by a Collection Bank. If, notwithstanding the foregoing, the Trustee or any Purchaser shall in good faith challenge Navistar Financial's identification of any item of payment or shall in good faith challenge any of Navistar Financial's formulas for allocating items of payment, Deloitte & Touche LLP (or such other accounting firm as shall be acceptable to Navistar Financial, such Purchaser and the Trustee), at Navistar Financial's expense, shall determine the proper identification of such item of payment or the propriety of such allocation formula. If any such determination shall result in additional amounts being transferable to a Proceeds Deposit Account with respect to any such item of payment, Navistar Financial shall promptly so transfer such additional amounts and, if it has been determined that Navistar Financial's formula for allocation was in error, the proper allocation formula shall thereafter be applied to allocate items of payment, subject to any subsequent revision as provided herein. No such determination shall prevent Navistar Financial, the Trustee or any Purchaser from litigating a claim to a greater portion of such funds. Navistar Financial will use all reasonable efforts to cause International and each Account Debtor, Dealer, Proceeds Account Bank and Collection Bank to comply with the foregoing procedures and instructions; provided that the failure of any of them so to comply shall not constitute a breach of this subsection.
(b) The name in which such Lock-boxes, Collection Accounts, Suspense Accounts and Proceeds Allocation Account are carried shall clearly indicate that (i) certain of the items and funds deposited therein are the property of Navistar Financial subject to the Trustee's Security Interest and (ii) certain other items and funds deposited therein are the property of one or more other Persons. The name in which each Proceeds Deposit Account is carried shall reflect the fact that all items and funds deposited therein are the property of Navistar Financial subject to the Trustee's Security Interest hereunder. The instructions governing such Lock-boxes and accounts shall not be altered in any material manner which is inconsistent with any Secured Instrument or which could reasonably be expected to adversely affect the Trustee, any Secured Party or any other holder of a Secured Obligation without the prior consent of the Required Secured Parties.
(c) Not later than the date hereof, as it follows to (i) any Lock-box, Suspense Account or Collection Account with a Collection Bank established on or before the date hereof and (ii) any Proceeds Deposit Account with a Proceeds Account Bank established on or before the date hereof, and prior to establishing any such lock-boxes and accounts with any bank after the date hereof, Navistar Financial will cause such bank to deliver a writing to the Trustee confirming that the bank in question has received the instructions and established the relevant accounts and procedures referred to in this Section. Navistar Financial may, from time to time with respect after the date hereof, designate a bank to mortgage loans act as a Collection Bank or a Proceeds Account Bank and such bank shall become a Collection Bank or a Proceeds Account Bank for purposes of this Agreement, provided that (i) such bank is located in its servicing portfolio that are comparable one of the 48 contiguous states (other than Maryland or Tennessee) in which Article 9 of the Uniform Commercial Code (Secured Transactions) is in effect, (ii) such bank has delivered a writing to the Mortgage Loans. A summary Trustee confirming the matters set forth in the first sentence of this subsection (c), and (iii) Navistar Financial has delivered to the Master ServicerTrustee an amended Schedule C or D, setting forth the then current list of Collection Banks or Proceeds Account Banks, as the case may be.
(d) Unless a Proceeds Account Bank has received notice from the Trustee that a Notice of Acceleration is in effect, Navistar Financial shall be entitled to instruct such Proceeds Account Bank to transfer amounts held in a Proceeds Deposit Account maintained with such bank to or upon the order of Navistar Financial, whereupon, unless such amounts are deposited in a UCC Deposit Account, the Trustee's collection procedures is attached hereto as Exhibit D. A written copy Security Interest in such amounts (but not in any property or rights concurrently or subsequently acquired by Navistar Financial in consideration of Navistar Financial's payment of any such amendment or modification amounts) shall be furnished cease immediately without any further action on the part of the Trustee; provided that Navistar Financial shall not instruct any Proceeds Account Bank to transfer funds from a Proceeds Deposit Account to any other bank account maintained by Navistar Financial which is not a Proceeds Deposit Account except to facilitate the prompt application thereof in Navistar Financial's business. After receiving notice from the Trustee that a Notice of Acceleration is in effect, each Proceeds Account Bank shall immediately and from time to time thereafter (unless it receives notice from the Trustee stating that such Notice of Acceleration is no longer in effect) transfer all funds held in its Proceeds Deposit Account to the Trustee. Consistent with the foregoing, the Master Servicer may in its discretion (1) waive any assumption fees, late payment charges, charges Trustee for checks returned for insufficient funds, prepayment fees, if any, or other fees that may be collected deposit in the ordinary course Collateral Account and shall notify the Trustee by facsimile transmission as to the details of servicing the Mortgage Loans, each such transfer.
(2e) if Unless a Mortgagor Notice of Acceleration is in default or appears about to be in default because of a Mortgagor's financial conditioneffect, arrange with the Mortgagor a schedule for the payment of delinquent payments due on the related Mortgage Loan or (3) modify payments of monthly principal Navistar Financial will, at its expense and interest on any Mortgage Loan becoming subject to the terms of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended (the "Relief Act"), in accordance with its normal commercial practices, for the Master Servicer's general policies benefit of the Trustee:
(i) ask for, demand, sue for, collect ▇▇ cause to be collected from the Account Debtor or Account Debtors on each Navistar Financial Receivable, as and when due, any and all amounts, including interest, owing under or on account of such Navistar Financial Receivable;
(ii) compromise and settle any dispute related to any Navistar Financial Receivable; and
(iii) take or cause to be taken such action to repossess goods securing any Navistar Financial Receivable, or to enforce any rights or liens arising thereunder and to dispose of such repossessed goods as Navistar Financial may deem proper; provided that Navistar Financial will not be required to take any action under this subsection which would be contrary to any applicable law or court order.
(f) The Proceeds Allocation Account and each Lock-box, Suspense Account, Collection Account and Proceeds Deposit Account established for comparable mortgage loans subject purposes of this Section shall be located in one of the 48 contiguous states (other than Maryland or Tennessee) in which Article 9 of the Uniform Commercial Code (Secured Transactions) is in effect, and each Proceeds Deposit Account shall be located in a state in which Section 9-306 of the Uniform Commercial Code provides for continuous perfection of a security interest in separate deposit accounts containing only proceeds. Navistar Financial shall keep the Trustee informed at all times as to the Relief Act; providedlocation of such accounts.
(g) Not later than the date hereof, howeverthe Trustee will cause the Concentration Bank to deliver a writing to the Trustee and Navistar Financial, confirming that the Master Servicer shall not, [without Concentration Bank has received the prior written consent instructions of the Bond Insurer,] permit Trustee and Navistar Financial referred to in subsection (a) of this Section. The Concentration Bank may at any waivertime, modification or variance by giving written notice to the Trustee and Navistar Financial, resign its position as the Trustee's agent and be discharged of its responsibilities hereunder, such resignation to be effective upon the appointment by the Trustee of a Mortgage Loan successor Concentration Bank (which Navistar Financial shall have the right to designate) and the acceptance of such appointment by such successor Concentration Bank. If no successor Concentration Bank shall be appointed and shall have accepted such appointment within 30 days after the Concentration Bank gives the aforesaid notice of resignation, the Trustee may appoint a successor Concentration Bank or apply to any court of competent jurisdiction to appoint a successor Concentration Bank. Upon the instruction of Navistar Financial, the Trustee shall, upon ten days' prior notice, remove the Concentration Bank and appoint as its agent a successor Concentration Bank designated by Navistar Financial, provided that would such successor Concentration Bank shall have accepted such appointment and delivered a writing to the Trustee and Navistar Financial confirming the matters set forth in the first sentence of this subsection (1g). Any successor Concentration Bank shall be a bank (i) change the Note Rate, (2) forgive the payment of any principal or interest, (3) impair the priority located in one of the lien represented by the related Mortgage 48 contiguous states (other than Maryland or (4Tennessee) extend the final maturity date in which Article 9 of the Mortgage Loan beyond _______ 20___, Uniform Commercial Code (Secured Transactions) is in any case except to effect and in a state in which Section 9-306 of the extent required under the Relief Act. The Master Servicer will not consent to the placement Uniform Commercial Code provides for continuous perfection of a deed security interest in separate deposit accounts containing only proceeds and (ii) having capital, surplus and undivided profits of trust at least $500,000,000 if there be such a bank with such capital, surplus and undivided profits willing, qualified and able to act as Concentration Bank upon reasonable or mortgage, as applicable, on any Mortgaged Property that has a priority equal to or higher than the lien securing the related Mortgage Loan unless such Mortgage Loan is prepaid in full. No partial release of a Mortgage Loan shall be made if it would cause the Loan-to-Value Ratio of the Mortgage Loan (taking into account the partial release) to be higher than the Loan-to-Value Ratio of the Mortgage Loan at originationcustomary terms.
Appears in 1 contract
Sources: Security, Pledge and Trust Agreement (Navistar Financial Corp)
Collection Procedures. The Master Servicer (a) On or before the date hereof, Navistar Financial will establish a system of operations, accounts and instructions to the Concentration Bank, Collection Banks, Proceeds Account Banks, International, Dealers and Account Debtors, as provided in this Section. Navistar Financial shall, subject to the provisions of Section 4.13, (i) instruct any Account Debtor obligated to make payments under any Navistar Financial Receivable (other than any Navistar Financial Receivable referred to in clause (ii) below) to make such payments directly to a separate special purpose account of Navistar Financial maintained at a Proceeds Account Bank and containing only Proceeds (a “Proceeds Deposit Account”) and (ii) instruct any Account Debtor obligated to make payments under any Navistar Financial Receivable referred to in clause (d) of the definition of Navistar Financial Receivables to make such payments (except to the extent such procedures that any Permitted Receivables Sale Agreement may require otherwise with respect to Receivables sold thereunder) to lock-boxes (the “Lock-boxes”) (in the case of any payments in the form of cash, checks, drafts and other instruments or items for the payment of money) and accounts (the “Collection Accounts”) (in the case of any payments made by wire transfer or similar electronic means) maintained by Navistar Financial with the Collection Banks. Payments on account of Wholesale Receivables shall be consistent paid to Lock-boxes and Collection Accounts which are separate from those to which payments on account of Retail Receivables are made. Navistar Financial shall, and shall request International and each Dealer to, pay forthwith into Lock-boxes and Collection Accounts, as appropriate, in the form received (or, in the case of any such payment received by wire transfer or similar electronic means, by such means), all payments on account of Wholesale Receivables and Retail Receivables received directly by Navistar Financial, International or any such Dealer; provided that any such payments received by International shall be deposited forthwith by International into the applicable retail suspense account of Navistar Financial (each such suspense account and each suspense account referred to in the next succeeding sentence, a “Suspense Account”) maintained by a Collection Bank. Navistar Financial shall instruct each Collection Bank to transfer by wire transfer or similar electronic means, on the same Business Day as received, all amounts deposited by wire transfer or similar electronic means into the wholesale or retail Collection Account maintained by such Collection Bank pursuant to this Section into a special purpose account of Navistar Financial maintained at the Concentration Bank (the “Proceeds Allocation Account”); provided that, if such Collection Bank receives any such amounts on a day that is not a Business Day, or too late on a Business Day to make such a transfer in accordance with such Collection Bank’s normal procedures, then such Collection Bank may make such transfer on the next succeeding Business Day. Navistar Financial shall instruct each Collection Bank (x) to deposit all cash, checks, drafts and other instruments or items for the payment of money paid into the wholesale or retail Lock-box (if any) maintained by such Collection Bank pursuant to this AgreementSection forthwith in the wholesale or retail Suspense Account of Navistar Financial, as appropriate, maintained by such Collection Bank (except that such Collection Bank may deal with items which are postdated, improperly endorsed or otherwise irregular in accordance with such Collection Bank’s usual procedures) and (y) to transfer by wire transfer or similar electronic means all cash, checks, drafts and other instruments or items deposited into any Suspense Account maintained by such Collection Bank to the Proceeds Allocation Account on the same Business Day as such items clear in accordance with such Collection Bank’s customary clearing schedule; provided that, if any such items so clear too late on a Business Day to make such a transfer in accordance with such Collection Bank’s normal procedures, then such Collection Bank may make such transfer on the next succeeding Business Day. Navistar Financial shall not deposit or, except as set forth in this subsection (a), cause to be deposited any amount in any Proceeds Deposit Account. The Trustee is hereby directed to instruct the Concentration Bank to follow the instructions of Navistar Financial given pursuant to this subsection (a). Navistar Financial shall instruct the Concentration Bank to retain all amounts transferred into the Proceeds Allocation Account in such collection account until they have been identified by Navistar Financial, either by actual identification or, so long as no Notice of Acceleration is in effect, by reasonable estimation in accordance with Navistar Financial’s usual procedures, as (i) Sold Collections, (ii) Retained Collections or (iii) other amounts. Upon such identification, (w) Navistar Financial shall provide prompt notice thereof to the Concentration Bank and the Trustee, (x) Retained Collections shall be transferred forthwith to a Proceeds Deposit Account, (y) Sold Collections shall be transferred in accordance with the terms under which the underlying Receivables were sold and (z) other amounts shall be transferred in accordance with Navistar Financial’s usual procedures. Such identification by Navistar Financial shall be effected as soon as reasonably practicable. Navistar Financial shall not permit any Proceeds to remain in any Deposit Account (other than any such account that is a UCC Deposit Account) more than 10 days after receipt of such Proceeds by a Collection Bank. If, notwithstanding the foregoing, the Trustee or any Purchaser shall in good faith challenge Navistar Financial’s identification of any item of payment or shall in good faith challenge any of Navistar Financial’s formulas for allocating items of payment, KPMG (or such other accounting firm as shall be acceptable to Navistar Financial, such Purchaser and the Trustee), at Navistar Financial’s expense, shall determine the proper identification of such item of payment or the propriety of such allocation formula. If any such determination shall result in additional amounts being transferable to a Proceeds Deposit Account with respect to any such item of payment, Navistar Financial shall promptly so transfer such additional amounts and, if it has been determined that Navistar Financial’s formula for allocation was in error, the proper allocation formula shall thereafter be applied to allocate items of payment, subject to any subsequent revision as provided herein. No such determination shall prevent Navistar Financial, the Trustee or any Purchaser from litigating a claim to a greater portion of such funds. Navistar Financial will use all reasonable efforts to cause International and each Account Debtor, Dealer, Proceeds Account Bank and Collection Bank to comply with the foregoing procedures and instructions; provided that the failure of any of them so to comply shall not constitute a breach of this subsection (a).
(b) The name in which such Lock-boxes, Collection Accounts, Suspense Accounts and Proceeds Allocation Account are carried shall clearly indicate that (i) certain of the items and funds deposited therein are the property of Navistar Financial subject to the Trustee’s Security Interest and (ii) certain other items and funds deposited therein are the property of one or more other Persons. The name in which each Proceeds Deposit Account is carried shall reflect the fact that all items and funds deposited therein are the property of Navistar Financial subject to the Trustee’s Security Interest hereunder. The instructions governing such Lock-boxes and accounts shall not be altered in any material manner which is inconsistent with any Secured Instrument or which could reasonably be expected to adversely affect the Trustee, any Secured Party or any other holder of a Secured Obligation without the prior consent of the Required Secured Parties.
(c) On or prior to the date hereof, as it follows to (i) any Lock-box, Suspense Account or Collection Account with a Collection Bank established on or before the date hereof and (ii) any Proceeds Deposit Account with a Proceeds Account Bank established on or before the date hereof, Navistar Financial has caused such bank to deliver a writing to the Trustee confirming that the bank in question has received the instructions and established the relevant accounts and procedures referred to in this Section 4.07.
(d) Not later than 60 days after the date hereof (or such later date agreed to by the Administrative Agent in its reasonable discretion), as to any Lock-box, Suspense Account or Collection Account with a Collection Bank established on or before the date hereof, and prior to establishing any Lock-box, Suspense Account or Collection Account with any bank after the date hereof, Navistar Financial will (A) cause such bank to deliver a writing to the Trustee confirming that the bank in question has (x) received the instructions and established the relevant accounts and procedures referred to in this Section and (y) expressly agreed with Navistar Financial in an agreement governing such Lock-box, Suspense Account or Collection Account, as applicable, that New York will be such bank’s jurisdiction for purposes of Article 9-304 of the Uniform Commercial Code as in effect in the State of New York or (B) execute and deliver to the Trustee an account control agreement, in form and substance reasonably satisfactory to the Trustee and the Administrative Agent, establishing that the such Lock-box, Suspense Account or Collection Account, as applicable, is subject to the Trustee’s “control” as defined in UCC Article 9-104 and whereby the bank maintaining such Lock-box, Suspense Account or Collection Account agrees to comply only with the instructions originated by the Trustee, without the further consent of Navistar Financial, upon the delivery of a notice of sole control by the Trustee. Navistar Financial may, from time to time after the date hereof, designate a bank to act as a Collection Bank and such bank shall become a Collection Bank for purposes of this Agreement, provided that (i) either (A) (I) with respect to mortgage loans each Lock-box, Suspense Account and Collection Account maintained with such bank, such bank expressly agrees with Navistar Financial in its servicing portfolio that are comparable to the Mortgage Loans. A summary of the Master Servicer's collection procedures is attached hereto as Exhibit D. A written copy of any an agreement governing such amendment Lock-box, Suspense Account or modification shall be furnished to the Trustee. Consistent with the foregoing, the Master Servicer may in its discretion (1) waive any assumption fees, late payment charges, charges for checks returned for insufficient funds, prepayment fees, if any, or other fees that may be collected in the ordinary course of servicing the Mortgage Loans, (2) if a Mortgagor is in default or appears about to be in default because of a Mortgagor's financial condition, arrange with the Mortgagor a schedule for the payment of delinquent payments due on the related Mortgage Loan or (3) modify payments of monthly principal and interest on any Mortgage Loan becoming subject to the terms of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended (the "Relief Act"), in accordance with the Master Servicer's general policies for comparable mortgage loans subject to the Relief Act; provided, however, that the Master Servicer shall not, [without the prior written consent of the Bond Insurer,] permit any waiver, modification or variance of a Mortgage Loan that would (1) change the Note Rate, (2) forgive the payment of any principal or interest, (3) impair the priority of the lien represented by the related Mortgage or (4) extend the final maturity date of the Mortgage Loan beyond _______ 20___, in any case except to the extent required under the Relief Act. The Master Servicer will not consent to the placement of a deed of trust or mortgageCollection Account, as applicable, that New York will be such bank’s jurisdiction for purposes of Article 9-304 of the Uniform Commercial Code as in effect in the State of New York and (II) such bank has delivered a writing to the Trustee confirming that the bank in question has (x) received the instructions and established the relevant accounts and procedures referred to in this Section and (y) with respect to each Lock-box, Suspense Account and Collection Account maintained with such bank, expressly agreed with Navistar Financial in an agreement governing such Lock-box, Suspense Account or Collection Account, as applicable, that New York will be such bank’s jurisdiction for purposes of Article 9-304 of the Uniform Commercial Code as in effect in the State of New York or (B) Navistar Financial and the bank in question have executed and delivered to the Trustee an account control agreement with respect to each Lock-box, Suspense Account and Collection Account maintained at such bank at such time, in form and substance reasonably satisfactory to the Trustee and the Administrative Agent, establishing that the such Lock-box, Suspense Account or Collection Account, as applicable, is subject to the Trustee’s “control” as defined in UCC Article 9-104 and whereby such bank agrees to comply only with the instructions originated by the Trustee, without the further consent of Navistar Financial, upon the delivery of a notice of sole control by the Trustee and (iii) Navistar Financial has delivered to the Trustee an amended Schedule B, setting forth the then current list of Collection Banks.
(e) Not later than 60 days after the date hereof (or such later date agreed to by the Administrative Agent in its reasonable discretion), as to any Proceeds Deposit Account with a Proceeds Account Bank established on or before the date hereof, and prior to establishing any Mortgaged Property Proceeds Deposit Account with any bank after the date hereof, Navistar Financial will execute and deliver to the Trustee an account control agreement, in form and substance reasonably satisfactory to the Trustee and the Administrative Agent, establishing that the such Proceeds Deposit Account is subject to the Trustee’s “control” as defined in UCC Article 9-104 and whereby the bank maintaining such Proceeds Deposit Account agrees to comply only with the instructions originated by the Trustee, without the further consent of Navistar Financial, upon the delivery of a notice of sole control by the Trustee. Navistar Financial may, from time to time after the date hereof, designate a bank to act as a Proceeds Account Bank and such bank shall become a Proceeds Account Bank for purposes of this Agreement, provided that (i) Navistar Financial and the bank in question have executed and delivered to the Trustee an account control agreement with respect to each Proceeds Deposit Account maintained at such bank at such time, in form and substance reasonably satisfactory to the Trustee and the Administrative Agent, establishing that each applicable Proceeds Deposit Account is subject to the Trustee’s “control” as defined in UCC Article 9-104 and whereby such bank agrees to comply only with the instructions originated by the Trustee, without the further consent of Navistar Financial, upon the delivery of a notice of sole control by the Trustee and (ii) Navistar Financial has delivered to the Trustee an amended Schedule C, setting forth the then current list of Proceeds Account Banks.
(f) Unless a priority equal Notice of Acceleration is in effect, Navistar Financial shall be entitled to instruct any Proceeds Account Bank to transfer amounts held in a Proceeds Deposit Account maintained with such bank to or higher than upon the lien securing the related Mortgage Loan order of Navistar Financial, whereupon, unless such Mortgage Loan amounts are deposited in a UCC Deposit Account, the Trustee’s Security Interest in such amounts (but not in any property or rights concurrently or subsequently acquired by Navistar Financial in consideration of Navistar Financial’s payment of any such amounts) shall cease immediately without any further action on the part of the Trustee; provided that Navistar Financial shall not instruct any Proceeds Account Bank to transfer funds from a Proceeds Deposit Account to any other bank account maintained by Navistar Financial which is prepaid not a Proceeds Deposit Account except to facilitate the prompt application thereof in fullNavistar Financial’s business. No partial release With respect to any Proceeds Deposit Account established on or before the date hereof, at any time prior to the execution and delivery of the account control agreement with respect to such Proceeds Deposit Account required pursuant to subsection (f) above, after receiving notice from the Trustee that a Notice of Acceleration is in effect, each Proceeds Account Bank shall immediately and from time to time thereafter (unless it receives notice from the Trustee stating that such Notice of Acceleration is no longer in effect) transfer all funds held in its Proceeds Deposit Accounts to the Trustee for deposit in the Collateral Account and shall notify the Trustee by electronic transmission as to the details of each such transfer. With respect to any Proceeds Deposit Account that is subject to an account control agreement as required pursuant to subsection (f) above, upon receipt of a Mortgage Loan Notice of Acceleration, the Trustee shall be made if deliver to the applicable Proceeds Account Bank a notice of sole control with respect to such Proceeds Deposit Account, and instruct the applicable Proceeds Account Bank to immediately and from time to time thereafter (unless it would cause receives notice from the Loan-to-Value Ratio Trustee stating that such notice of sole control is no longer in effect) transfer all funds held in such Proceeds Deposit Account to the Mortgage Loan (taking into account Trustee for deposit in the partial release) Collateral Account and notify the Trustee by electronic transmission as to be higher than the Loan-to-Value Ratio details of the Mortgage Loan at origination.each such transf
Appears in 1 contract
Sources: Security, Pledge and Trust Agreement (Navistar International Corp)