AMENDMENT NO. 1 TO MASTER SERVICING AGREEMENT
Servicing Account No.: CLS-SBF-2022-0041
This AMENDMENT NO. 1 TO MASTER SERVICING AGREEMENT (this "Amendment") is entered into as of March 18, 2024, by and between:
SKYBRIDGE FINTECH LTD., a Delaware corporation ("SBF" or the "Company"), with its principal office located at 1400 Market Street, Suite 1210, Wilmington, DE 19801;
and
CLEARVIEW LOAN SERVICING, INC., an Ohio corporation ("Clearview" or the "Servicer"), with its principal office located at 8800 Brecksville Road, Suite 300, Cleveland, OH 44141.
SBF and Clearview are sometimes referred to herein individually as a "Party" and collectively as the "Parties."
This Amendment amends that certain Master Servicing Agreement dated as of October 1, 2022, by and between SBF and Clearview (as amended, restated, supplemented, or otherwise modified from time to time prior to the date hereof, the "Master Servicing Agreement" or "MSA").
RECITALS
WHEREAS:
A. SBF and Clearview entered into the Master Servicing Agreement dated as of October 1, 2022, pursuant to which Clearview provides servicing and sub-servicing of consumer installment-loan receivables originated by SBF through its direct-to-consumer digital lending platform known as "SkyLend," including the collection and remittance of payments, the maintenance of borrower records, the management of delinquent and defaulted loans, and other related servicing activities, all as more fully set forth therein;
B. SBF is undertaking a securitization transaction pursuant to which certain consumer installment-loan receivables will be transferred through SkyLend Funding LLC, a Delaware limited liability company and wholly owned subsidiary of SBF (the "Depositor"), to SkyLend Receivables Trust 2024-1, a Delaware statutory trust (the "Trust" or "SRT 2024-1"), which Trust was formed on February 14, 2024, pursuant to a Trust Agreement dated as of February 14, 2024, between the Depositor and Keymark Trust Company, National Association, as owner trustee;
C. The Trust intends to issue asset-backed notes (the "Notes") in an aggregate principal amount of up to Two Hundred Million Dollars ($200,000,000), secured by a pool of unsecured consumer installment-loan receivables (the "Receivables Pool"), pursuant to an Indenture between the Trust and Atlantic Fiduciary Services, Inc., as indenture trustee (the "Indenture Trustee"), and the proceeds of such issuance will be used to fund the Trust's acquisition of the Receivables Pool from the Depositor;
D. The Notes will be offered and sold in a private placement pursuant to Rule 144A under the Securities Act of 1933, as amended, and Regulation S thereunder, with Halcyon Securities LLC acting as sole bookrunning manager and initial purchaser, and neither the Notes nor the offering thereof will be registered under the Securities Act of 1933, as amended, or any state securities laws;
E. The Parties desire to amend the MSA to (i) adapt Clearview's servicing obligations to the specific requirements of the Securitization Transaction, (ii) add reporting requirements specific to the Trust and the transaction parties, (iii) incorporate monthly investor-report deliverables and quarterly static-pool performance reporting obligations, (iv) confirm and reaffirm the contractual payment-application waterfall set forth in Section 4.03 of the MSA, (v) establish additional servicer termination events applicable to Trust Receivables, and (vi) make certain other conforming and related changes as more fully set forth herein; and
F. Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in the MSA.
NOW, THEREFORE, in consideration of the mutual covenants, agreements, representations, and warranties contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE I — DEFINITIONS
Section 1.1 — Additional Definitions
As used in this Amendment, the following terms shall have the meanings set forth below:
"Backup Servicer" means the backup servicer, if any, appointed from time to time in connection with the Securitization Transaction, as defined in and pursuant to the Sale and Servicing Agreement.
"Class A Notes" means the Class A Asset-Backed Notes in the aggregate principal amount of One Hundred Seventy Million Dollars ($170,000,000) issued by the Trust, representing approximately eighty-five percent (85%) of the aggregate initial principal amount of the Notes.
"Class B Notes" means the Class B Asset-Backed Notes in the aggregate principal amount of Twenty-Two Million Dollars ($22,000,000) issued by the Trust, representing approximately eleven percent (11%) of the aggregate initial principal amount of the Notes.
"Collection Account" means the segregated trust account established and maintained under the Indenture for the deposit of all collections received on the Receivables Pool, including principal collections, interest collections, fee collections, and recoveries on defaulted Receivables.
"Cut-Off Date" means March 31, 2024, the date as of which the Receivables Pool will be identified and the aggregate outstanding principal balance of the Receivables in the Pool will be determined.
"Depositor" means SkyLend Funding LLC, a Delaware limited liability company and wholly owned subsidiary of SBF, in its capacity as depositor under the Sale and Servicing Agreement and the Receivables Purchase Agreement.
"Determination Date" means the fifteenth (15th) day of each calendar month (or, if such day is not a Business Day, the next succeeding Business Day), on which the Servicer shall calculate and determine all amounts payable on the related Distribution Date, including amounts distributable to the Noteholders, amounts payable as servicing fees, and amounts allocable to the Reserve Account and other credit enhancement.
"Distribution Date" means the twenty-fifth (25th) day of each calendar month (or, if such day is not a Business Day, the next succeeding Business Day), on which amounts on deposit in the Collection Account shall be distributed in accordance with the priority-of-payments waterfall set forth in the Indenture.
"Eligible Receivable" means a Receivable that meets all of the eligibility criteria set forth in the Receivables Purchase Agreement and the Sale and Servicing Agreement, including but not limited to the criteria relating to origination standards, loan characteristics, obligor creditworthiness, and compliance with applicable law.
"Indenture" means the Indenture dated as of April 2024, between the Trust, as issuer, and Atlantic Fiduciary Services, Inc., as indenture trustee, pursuant to which the Notes are issued, as such Indenture may be amended, restated, supplemented, or otherwise modified from time to time.
"Indenture Trustee" means Atlantic Fiduciary Services, Inc., a Delaware corporation, in its capacity as indenture trustee under the Indenture, or any successor indenture trustee appointed in accordance with the terms of the Indenture.
"Investor Report" means the monthly servicing report to be prepared and delivered by the Servicer substantially in the form attached hereto as Exhibit A, containing the information required by Section 2.3 of this Amendment and such other information as may be reasonably requested by the Indenture Trustee or the Rating Agencies from time to time.
"Monthly Period" means each calendar month during the term of this Amendment, commencing with the calendar month in which the Cut-Off Date occurs.
"Notes" means, collectively, the Class A Notes and the Class B Notes issued by the Trust pursuant to the Indenture.
"Noteholders" means the holders of the Notes from time to time, as reflected in the register maintained by the Indenture Trustee or the registrar appointed under the Indenture.
"Owner Trustee" means Keymark Trust Company, National Association, a national banking association, in its capacity as owner trustee of the Trust pursuant to the Trust Agreement, or any successor owner trustee appointed in accordance with the terms of the Trust Agreement.
"Rating Agencies" means Meridian Credit Ratings, Inc. and Carrollton Ratings Group LLC, and any successors thereto or replacements thereof designated in accordance with the terms of the Indenture.
"Receivables Pool" means the pool of consumer installment-loan receivables transferred by the Depositor to the Trust, with an aggregate outstanding principal balance of approximately Two Hundred Million Dollars ($200,000,000) as of the Cut-Off Date, as more particularly described in the Sale and Servicing Agreement and the schedules thereto.
"Residual Interest" means the subordinated certificate or residual interest in the Trust in the initial amount of Eight Million Dollars ($8,000,000), representing approximately four percent (4%) of the aggregate initial principal amount of the Notes and the Residual Interest, which Residual Interest is retained by SBF through the Depositor.
"Reserve Account" means the reserve account established and maintained under the Indenture for the benefit of the Noteholders, with an initial funded balance equal to one percent (1.00%) of the initial pool balance (Two Million Dollars ($2,000,000)), to be replenished and maintained in accordance with the terms of the Indenture.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement among the Depositor, the Trust, SBF (as seller and administrator), and Clearview (as servicer), as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Securitization Transaction" means the transaction contemplated by the Indenture, the Sale and Servicing Agreement, the Receivables Purchase Agreement, and all related transaction documents, pursuant to which the Trust will acquire the Receivables Pool and issue the Notes secured thereby.
"Trust" or "SRT 2024-1" means SkyLend Receivables Trust 2024-1, a Delaware statutory trust formed pursuant to the Trust Agreement dated as of February 14, 2024.
Section 1.2 — Amended Definitions
Any definitions contained in the MSA that conflict with or are supplemented by the definitions set forth in Section 1.1 of this Amendment shall be read in conjunction with, and to the extent of any conflict shall be superseded by, the definitions in this Amendment, but solely with respect to Receivables included in the Receivables Pool. For all purposes unrelated to the Trust Receivables or the Securitization Transaction, the definitions set forth in the MSA shall continue to apply without modification. In the event of any ambiguity as to whether a particular definition applies to Trust Receivables or to non-Trust Receivables, the Parties shall resolve such ambiguity in a manner consistent with the terms of the Sale and Servicing Agreement and the Indenture, and if such ambiguity cannot be resolved by reference to those documents, the Parties shall consult and agree upon an appropriate interpretation in good faith.
ARTICLE II — AMENDMENTS TO THE MASTER SERVICING AGREEMENT
Section 2.1 — Scope of Servicer's Obligations with Respect to Trust Receivables
(a) Clearview's servicing obligations under the MSA shall apply to all Receivables in the Receivables Pool as if each such Receivable were separately identified and scheduled under the MSA. Each Trust Receivable shall be serviced in accordance with the servicing standards, procedures, and practices set forth in the MSA as amended hereby, and Clearview shall exercise the same degree of care, diligence, and skill in servicing Trust Receivables as it would exercise in servicing comparable receivables for its own account or for other institutional clients, and in no event less than the degree of care, diligence, and skill customarily exercised by prudent institutional servicers of similar consumer installment-loan receivables.
(b) Clearview shall service Trust Receivables in accordance with (i) the MSA as amended hereby, (ii) the Sale and Servicing Agreement, and (iii) the Indenture. In the event of any conflict among such documents with respect to the servicing of Trust Receivables, the Sale and Servicing Agreement shall control, except that in the event of a conflict between the Sale and Servicing Agreement and the Indenture with respect to the rights and obligations of the Indenture Trustee or the Noteholders, the Indenture shall control.
(c) Clearview shall segregate Trust Receivables from all other receivables serviced by Clearview under the MSA or otherwise, and shall maintain separate records, systems, sub-ledgers, and accounts for Trust Receivables. Trust Receivables shall be clearly identified and distinguished within Clearview's servicing platform (currently the "ClearCore" platform) from all other receivables. Clearview shall ensure that all collections on Trust Receivables are deposited into the Collection Account and are not commingled with collections on any other receivables serviced by Clearview.
(d) As of the date of this Amendment, the proposed Receivables Pool consists of approximately twenty-three thousand one hundred (23,100) consumer installment loans with an aggregate outstanding principal balance of approximately Two Hundred Thirteen Million Seven Hundred Fifty Thousand Dollars ($213,750,000) on a gross basis, before the application of credit and eligibility screening criteria. Following the application of such criteria, the final Receivables Pool is expected to consist of Eligible Receivables with an aggregate outstanding principal balance of approximately Two Hundred Million Dollars ($200,000,000) as of the Cut-Off Date. Clearview acknowledges that the final composition and size of the Receivables Pool will be determined on the Cut-Off Date in accordance with the terms of the Receivables Purchase Agreement and the Sale and Servicing Agreement.
Section 2.2 — Confirmation and Reaffirmation of Payment-Application Waterfall (Section 4.03 of the MSA)
(a) The Parties hereby confirm, reaffirm, and agree that the payment-application waterfall set forth in Section 4.03 of the MSA shall apply to all Trust Receivables without modification, deviation, or exception. The Parties acknowledge that the payment-application waterfall is a fundamental term of the MSA and of this Amendment, and that the integrity of the servicing data, the Investor Reports, and the performance of the Receivables Pool depends upon the consistent and accurate application of such payment-application waterfall.
(b) Specifically, all payments received from obligors on Trust Receivables, whether received as scheduled payments, partial payments, full payoffs, or otherwise, shall be applied in the following order of priority:
(i) First, to accrued and unpaid interest on the Receivable, calculated in accordance with the terms of the underlying loan agreement and the MSA;
(ii) Second, to any fees, charges, or penalties due and owing on the Receivable, including but not limited to late fees, returned-payment fees, and other charges assessed in accordance with the terms of the underlying loan agreement and applicable law; and
(iii) Third, to the outstanding principal balance of the Receivable.
(c) Clearview represents, warrants, and covenants that it has applied, and will continue to apply, the Section 4.03 payment-application waterfall to all Receivables serviced under the MSA, including without limitation all Trust Receivables. Clearview further represents and warrants that it has not at any time deviated from the Section 4.03 payment-application waterfall in connection with the servicing of any Receivable that is or may become a Trust Receivable, and that all servicing data, reports, tapes, and other information heretofore delivered to SBF have been prepared on a basis consistent with such payment-application waterfall.
(d) In no event shall Clearview apply partial payments to the outstanding principal balance of a Trust Receivable before applying such payment first to accrued and unpaid interest and then to fees, charges, and penalties, in each case in accordance with the order of priority set forth in Section 2.2(b) above. Any deviation from the Section 4.03 payment-application waterfall in the servicing of any Trust Receivable, whether resulting from manual error, system error, platform deficiency, software update, or otherwise, shall constitute a Servicer Default under the MSA and a Servicer Termination Event under this Amendment.
(e) Clearview shall ensure that its servicing platform (currently the "ClearCore" platform, as migrated from the legacy "LoanTrax" system in June 2023) correctly implements the Section 4.03 payment-application waterfall for all Trust Receivables. Clearview represents and warrants that the migration from the LoanTrax system to the ClearCore platform did not alter, modify, or adversely affect the payment-application logic applicable to any Receivable that is or may become a Trust Receivable, and that the ClearCore platform accurately reflects the Section 4.03 payment-application waterfall as of the date of this Amendment.
Section 2.3 — Monthly Investor Report Deliverables
(a) Clearview shall prepare and deliver a monthly Investor Report substantially in the form attached hereto as Exhibit A not later than two (2) Business Days prior to each Determination Date. The Investor Report shall be delivered to each of the following parties:
(i) SBF, in its capacity as administrator of the Trust, at the address set forth in Section 2.10 of this Amendment;
(ii) The Indenture Trustee, Atlantic Fiduciary Services, Inc. (Attention: David Moynihan, Vice President — Structured Finance Trust Administration), at the address set forth in the Indenture;
(iii) The Owner Trustee, Keymark Trust Company, National Association (Attention: Elaine Marchetti, Assistant Vice President — Corporate Trust Services), at the address set forth in the Trust Agreement;
(iv) The Rating Agencies, Meridian Credit Ratings, Inc. and Carrollton Ratings Group LLC, at the respective addresses specified in the Indenture or as otherwise communicated by the Rating Agencies to the Servicer from time to time; and
(v) Halcyon Securities LLC, as initial purchaser, at the address set forth in the Note Purchase Agreement, upon reasonable written request by Halcyon Securities LLC.
(b) The Investor Report shall contain, at a minimum, the following information for the applicable Monthly Period:
(i) The aggregate outstanding principal balance of the Receivables Pool as of the beginning and end of the applicable Monthly Period;
(ii) Total collections received during the Monthly Period, broken down by category as follows: (A) interest collections, (B) fee collections (including late fees, returned-payment fees, and other charges), and (C) principal collections (including both scheduled principal and prepayments);
(iii) Delinquency statistics, including the number and dollar amount of Receivables that are thirty (30) to fifty-nine (59) days past due, sixty (60) to eighty-nine (89) days past due, ninety (90) to one hundred nineteen (119) days past due, and one hundred twenty (120) or more days past due, in each case as of the end of the applicable Monthly Period;
(iv) Default and charge-off data, including the number and dollar amount of Receivables that became newly defaulted during the applicable Monthly Period, the cumulative number and dollar amount of defaults since the Cut-Off Date, and the dollar amount of recoveries received during the applicable Monthly Period on previously defaulted Receivables;
(v) Cumulative net loss data, including static-pool performance data broken down by origination vintage on a quarterly-cohort basis, showing cumulative gross losses, cumulative recoveries, and cumulative net losses for each vintage;
(vi) Prepayment data, including the number and dollar amount of voluntary prepayments (full and partial) received during the applicable Monthly Period, and the calculated prepayment speed expressed as a conditional prepayment rate (CPR) equivalent on an annualized basis;
(vii) The weighted average coupon (WAC), weighted average remaining term (WART), and weighted average FICO score at origination for the remaining Receivables Pool as of the end of the applicable Monthly Period;
(viii) The overcollateralization amount and overcollateralization percentage as of the end of the applicable Monthly Period, measured against the target overcollateralization level of three and one-half percent (3.5%) of the initial pool balance (Seven Million Dollars ($7,000,000));
(ix) The Reserve Account balance as of the end of the applicable Monthly Period, measured against the required Reserve Account balance of one percent (1.00%) of the initial pool balance (Two Million Dollars ($2,000,000));
(x) The excess spread calculation for the applicable Monthly Period, expressed on an annualized basis, with the estimated excess spread at transaction inception being two and eighty-five hundredths percent (2.85%) per annum;
(xi) Geographic concentration data, showing the outstanding principal balance and percentage of the Receivables Pool attributable to each state, with specific identification of any state in which the concentration exceeds or approaches the concentration limit of twenty percent (20%) of the then-outstanding pool balance;
(xii) Maximum single-obligor concentration data, identifying any single obligor whose aggregate outstanding principal balance exceeds or approaches the single-obligor concentration limit of fifteen hundredths of one percent (0.15%) of the then-outstanding pool balance (initially Three Hundred Thousand Dollars ($300,000));
(xiii) Early-amortization trigger testing results, showing the calculation and results of each early-amortization trigger test set forth in the Indenture, and indicating whether each such trigger test was satisfied (pass) or failed (fail) for the applicable Monthly Period; and
(xiv) A certification by a Responsible Officer of Clearview that all data contained in the Investor Report is accurate, complete, and has been prepared in accordance with the Section 4.03 payment-application waterfall (interest first, then fees, then principal), and that no Servicer Termination Event has occurred and is continuing.
(c) The Investor Report shall be delivered in electronic format (Microsoft Excel or comparable format) and in portable document format (PDF), in each case via secure electronic transmission to the recipients specified in Section 2.3(a) above, unless any such recipient requests delivery in hard copy, in which case Clearview shall deliver the Investor Report in hard copy within two (2) Business Days following the electronic delivery date.
(d) Clearview shall promptly notify SBF and the Indenture Trustee in writing if Clearview becomes aware of any material error or omission in any previously delivered Investor Report, and shall deliver a corrected Investor Report within five (5) Business Days of becoming aware of such error or omission.
Section 2.4 — Static-Pool Performance Reporting
(a) In addition to the monthly Investor Report required by Section 2.3, Clearview shall prepare and deliver quarterly static-pool performance reports (each, a "Static-Pool Report") showing cumulative gross loss, cumulative net loss, delinquency curves, and prepayment curves for each origination vintage of Receivables included in the Receivables Pool. Each origination vintage shall be defined on a quarterly-cohort basis (i.e., January through March, April through June, July through September, and October through December of each origination year).
(b) All static-pool data shall be prepared on a consistent basis using the payment-application waterfall specified in Section 4.03 of the MSA (interest first, then fees, then principal). Clearview shall not deviate from the Section 4.03 payment-application waterfall in the preparation of any Static-Pool Report, and any deviation therefrom shall constitute a breach of Clearview's obligations under this Amendment.
(c) Static-Pool Reports shall be delivered to SBF, the Indenture Trustee, the Owner Trustee, and the Rating Agencies within fifteen (15) Business Days following the end of each calendar quarter, commencing with the calendar quarter ending June 30, 2024.
(d) Clearview represents and warrants that all static-pool performance data previously provided to SBF under the MSA (including without limitation the 2022 vintage data used as a baseline reference in connection with the Securitization Transaction) has been prepared using the Section 4.03 payment-application waterfall consistently and without material error. Clearview further represents and warrants that such data is accurate and complete in all material respects as of the date of its delivery to SBF.
Section 2.5 — Data Integrity and System Controls
(a) Clearview shall implement and maintain internal controls, system validations, and quality-assurance procedures sufficient to ensure the accuracy and completeness of all servicing data, reports, tapes, and other information provided in connection with the Trust Receivables and the Securitization Transaction. Such controls shall include, without limitation, automated system edits, exception reports, supervisory review procedures, and periodic internal audits of payment-application logic and data integrity.
(b) Clearview shall perform monthly data reconciliation between its servicing system (ClearCore) and the records of SBF to verify the accuracy of payment application, delinquency status, loss classification, and other material servicing data for Trust Receivables. Each monthly reconciliation shall be completed prior to the preparation of the Investor Report for the applicable Monthly Period, and any discrepancies identified during the reconciliation process shall be promptly investigated, resolved, and documented by Clearview. Clearview shall maintain records of all reconciliation activities and shall make such records available to SBF and the Indenture Trustee upon request.
(c) Clearview shall promptly notify SBF in writing of any system migration, platform change, software update, or modification to payment-application logic, data architecture, or reporting functionality that could affect the servicing of Trust Receivables, the accuracy of the Investor Reports, or the integrity of the servicing data. Clearview shall obtain SBF's prior written consent before implementing any such change with respect to Trust Receivables, and SBF shall have the right to require Clearview to conduct parallel testing and validation procedures before any such change is deployed in production. In addition, Clearview shall provide the Indenture Trustee with prompt written notice of any such proposed change.
(d) Clearview shall permit SBF, the Indenture Trustee, and any third-party due-diligence provider engaged in connection with the Securitization Transaction (including Broadleaf Analytics Group LLC or any successor) to audit Clearview's servicing records, systems, data, and internal controls at reasonable times and upon reasonable prior written notice (which notice shall be not less than five (5) Business Days). Such audits may include, without limitation, on-site inspections of Clearview's facilities, review of electronic records and system configurations, testing of payment-application logic, sampling and re-underwriting of individual Receivable files, and interviews with Clearview's personnel. Clearview shall cooperate fully with any such audit and shall provide reasonable access to its facilities, personnel, systems, and records. The costs of any such audit shall be borne by the requesting party, except that the costs of any audit triggered by a Servicer Termination Event or a breach of Clearview's obligations under this Amendment shall be borne by Clearview.
Section 2.6 — Servicing Fee Confirmation
(a) The servicing fee payable to Clearview with respect to Trust Receivables (the "Servicing Fee") shall be fifty hundredths of one percent (0.50%) per annum of the outstanding principal balance of the Receivables Pool, calculated on a monthly basis (one-twelfth of the annual rate applied to the outstanding principal balance as of the first day of the applicable Monthly Period) and payable on each Distribution Date in accordance with the priority-of-payments waterfall set forth in the Indenture.
(b) Based on the initial pool balance of Two Hundred Million Dollars ($200,000,000), the estimated first-year Servicing Fee is One Million Dollars ($1,000,000) (calculated as $200,000,000 multiplied by 0.50%). The actual Servicing Fee for any Monthly Period will be calculated based on the then-outstanding principal balance of the Receivables Pool and will decline as the pool amortizes.
(c) The Servicing Fee shall be subordinate to the payments on the Class A Notes and the Class B Notes in the priority-of-payments waterfall under the Indenture, as more fully set forth therein, but shall be senior to the distributions on the Residual Interest. The specific priority of the Servicing Fee within the waterfall is set forth in the Indenture and the Sale and Servicing Agreement, and in the event of any conflict between this Section 2.6 and the Indenture or the Sale and Servicing Agreement regarding the priority of the Servicing Fee, the Indenture shall control.
Section 2.7 — Servicer Termination Events
(a) In addition to the Servicer Default events set forth in the MSA (each of which shall continue to apply with respect to Trust Receivables), each of the following shall constitute a "Servicer Termination Event" with respect to Trust Receivables:
(i) Failure by Clearview to deliver any Investor Report required by Section 2.3 of this Amendment within five (5) Business Days after the applicable due date therefor;
(ii) Any material inaccuracy in any Investor Report, Static-Pool Report, data tape, or other data or information delivered by Clearview in connection with the Trust Receivables or the Securitization Transaction that is not cured within ten (10) Business Days after written notice thereof from SBF or the Indenture Trustee to Clearview specifying the nature of such inaccuracy;
(iii) Any deviation from the Section 4.03 payment-application waterfall in the servicing of Trust Receivables, whether resulting from manual error, system error, platform deficiency, software update, or otherwise, regardless of the dollar amount or number of Receivables affected;
(iv) Any breach of the data-integrity or system-controls covenants set forth in Section 2.5 of this Amendment that is not cured within ten (10) Business Days after written notice thereof from SBF or the Indenture Trustee to Clearview; and
(v) Any downgrade of Clearview's servicer rating (including any servicer quality rating, servicer assessment, or similar rating or assessment) by either of the Rating Agencies below the minimum level required by the Rating Agencies for the maintenance of the assigned ratings on the Notes, as set forth in the Indenture or as otherwise communicated by the Rating Agencies to SBF or the Indenture Trustee.
(b) Upon the occurrence of a Servicer Termination Event, SBF (acting in its capacity as administrator of the Trust) or the Indenture Trustee (acting at the direction of Noteholders holding a majority in outstanding principal amount of the Notes then outstanding) may, by written notice delivered to Clearview, terminate Clearview's servicing rights and obligations with respect to Trust Receivables. Upon such termination, Clearview shall cooperate with SBF and the Indenture Trustee in the orderly transfer of servicing to a successor servicer or backup servicer, including the prompt delivery of all servicing records, data tapes, borrower files, and system access credentials, and shall continue to perform its servicing obligations during any transition period as directed by SBF or the Indenture Trustee. The costs of any such transfer of servicing shall be borne by Clearview to the extent that the Servicer Termination Event giving rise to such transfer was caused by Clearview's breach of its obligations under the MSA or this Amendment.
(c) The rights and remedies of SBF and the Indenture Trustee under this Section 2.7 shall be in addition to, and not in limitation of, any other rights and remedies available to SBF, the Indenture Trustee, the Trust, or the Noteholders under the MSA, the Sale and Servicing Agreement, the Indenture, or applicable law.
Section 2.8 — Cooperation with Rating Agencies and Due-Diligence Providers
(a) Clearview shall cooperate fully and promptly with the Rating Agencies (Meridian Credit Ratings, Inc. and Carrollton Ratings Group LLC) and any third-party due-diligence provider engaged in connection with the Securitization Transaction (including Broadleaf Analytics Group LLC or any successor) in responding to requests for information, data, documentation, and clarification regarding Trust Receivables, servicing practices, payment-application procedures, system controls, and any other matters relevant to the Rating Agencies' analysis of the Trust, the Notes, and the Receivables Pool.
(b) Clearview shall make its personnel, systems, and records available for on-site and remote reviews as reasonably requested by the Rating Agencies or any due-diligence provider, upon reasonable prior notice. Without limiting the generality of the foregoing, Clearview shall facilitate access to its ClearCore servicing platform for the purpose of enabling the Rating Agencies and due-diligence providers to verify payment-application logic, data integrity, and compliance with the Section 4.03 payment-application waterfall. Clearview shall designate a senior officer (initially, Meredith Sloane, VP Operations) as the primary point of contact for all Rating Agency and due-diligence inquiries.
Section 2.9 — Backup Servicing Provisions
(a) Clearview acknowledges and agrees that SBF may, in its sole discretion and at any time, engage a backup servicer in connection with the Securitization Transaction, and Clearview agrees to cooperate fully with any such backup servicer in connection with the performance of its duties. Such cooperation shall include, without limitation, the following:
(i) Providing monthly data tapes and system extracts to the backup servicer in the format and frequency reasonably requested by SBF or the backup servicer;
(ii) Providing the backup servicer with reasonable access to Clearview's servicing systems and records, including read-only access to the ClearCore platform, to the extent technically feasible and consistent with Clearview's security and confidentiality policies;
(iii) Providing operational support and training to the backup servicer as reasonably necessary to enable the backup servicer to assume servicing duties upon the occurrence of a Servicer Termination Event; and
(iv) Participating in periodic readiness reviews and testing exercises to verify the backup servicer's ability to assume servicing duties in a timely and orderly manner.
(b) Clearview's obligations under this Section 2.9 shall survive the termination of Clearview's servicing rights and obligations with respect to Trust Receivables and shall continue until the servicing transfer to a successor servicer or backup servicer has been completed to the reasonable satisfaction of SBF and the Indenture Trustee.
Section 2.10 — Notices
All notices, requests, demands, consents, and other communications required or permitted under this Amendment with respect to Trust Receivables shall be in writing and shall be delivered personally, sent by nationally recognized overnight courier, or sent by certified mail, return receipt requested, postage prepaid, to the applicable Party at the following address (or at such other address as such Party may designate by written notice to the other Party):
If to SBF:
Skybridge Fintech Ltd. 1400 Market Street, Suite 1210 Wilmington, DE 19801
Attention: Tomás Reyes, General Counsel
Telephone: (302) 555-8400
Email: treyes@skybridgefintech.com
With a copy to (which shall not constitute notice):
Calderwood & Harkness LLP 425 Lexington Avenue New York, NY 10017
Attention: Theodore Langston
Telephone: (212) 555-6100
Email: tlangston@calderwoodharkness.com
If to Clearview:
Clearview Loan Servicing, Inc. 8800 Brecksville Road, Suite 300 Cleveland, OH 44141
Attention: Meredith Sloane, VP Operations
Telephone: (216) 555-3200
Email: msloane@clearviewservicing.com
With a copy to (which shall not constitute notice):
Warren Pettigrew, Chief Executive Officer Clearview Loan Servicing, Inc. 8800 Brecksville Road, Suite 300 Cleveland, OH 44141 Telephone: (216) 555-3201
Email: wpettigrew@clearviewservicing.com
Notices shall be deemed delivered (a) upon receipt, if delivered personally, (b) one (1) Business Day after deposit with a nationally recognized overnight courier, or (c) three (3) Business Days after deposit in the United States mail, certified mail, return receipt requested, postage prepaid.
ARTICLE III — REPRESENTATIONS AND WARRANTIES
Section 3.1 — Representations and Warranties of Clearview
Clearview hereby represents and warrants to SBF, as of the date of this Amendment, as follows:
(a) Organization and Good Standing. Clearview is a corporation duly organized, validly existing, and in good standing under the laws of the State of Ohio. Clearview is duly qualified to do business and is in good standing in each jurisdiction where the nature of its business or the ownership of its properties requires such qualification, except where the failure to be so qualified would not reasonably be expected to have a material adverse effect on Clearview's ability to perform its obligations under this Amendment or the MSA.
(b) Corporate Power and Authority. Clearview has all requisite corporate power and authority to execute, deliver, and perform its obligations under this Amendment and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this Amendment by Clearview have been duly authorized by all necessary corporate action on the part of Clearview.
(c) Valid and Binding Obligation. This Amendment constitutes a valid and binding obligation of Clearview, enforceable against Clearview in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, receivership, conservatorship, and similar laws affecting the enforcement of creditors' rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(d) No Conflicts. The execution, delivery, and performance of this Amendment by Clearview do not and will not (i) conflict with or violate Clearview's articles of incorporation, bylaws, or other organizational documents, (ii) conflict with or violate any applicable law, statute, regulation, rule, order, judgment, or decree applicable to Clearview or its properties, or (iii) conflict with, result in a breach of, or constitute a default (with or without notice or lapse of time, or both) under any material agreement, contract, instrument, or obligation to which Clearview is a party or by which Clearview or any of its properties is bound.
(e) Consistent Application of Payment Waterfall. Clearview has applied the Section 4.03 payment-application waterfall (interest first, then fees, then principal) consistently to all Receivables serviced under the MSA since the effective date of the MSA, including all Receivables that are or may become Trust Receivables. All servicing data, reports, tapes, and other information previously delivered by Clearview to SBF have been prepared on a basis consistent with the Section 4.03 payment-application waterfall, and such data, reports, tapes, and information are accurate and complete in all material respects.
(f) Servicing Platform Compliance. Clearview's servicing platform (ClearCore) accurately implements the Section 4.03 payment-application waterfall and all applicable servicing procedures required under the MSA. The migration of Clearview's servicing systems from the legacy LoanTrax platform to the ClearCore platform, which was completed in June 2023, did not result in any material loss, corruption, or alteration of servicing data, and the payment-application logic applied by the ClearCore platform is consistent with the Section 4.03 payment-application waterfall.
(g) Insurance and Fidelity Coverage. Clearview maintains adequate insurance, fidelity bonds, and errors-and-omissions coverage as required by Section 7.05 of the MSA and as reasonably appropriate for a servicer of consumer installment-loan receivables of the type included in the Receivables Pool. Such coverage is in full force and effect as of the date of this Amendment.
Section 3.2 — Representations and Warranties of SBF
SBF hereby represents and warrants to Clearview, as of the date of this Amendment, as follows:
(a) Organization and Good Standing. SBF is a corporation duly incorporated, validly existing, and in good standing under the laws of the State of Delaware. SBF is duly qualified to do business and is in good standing in each jurisdiction where the nature of its business or the ownership of its properties requires such qualification, except where the failure to be so qualified would not reasonably be expected to have a material adverse effect on SBF's ability to perform its obligations under this Amendment or the MSA.
(b) Corporate Power and Authority. SBF has all requisite corporate power and authority to execute, deliver, and perform its obligations under this Amendment and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this Amendment by SBF have been duly authorized by all necessary corporate action on the part of SBF.
(c) Valid and Binding Obligation. This Amendment constitutes a valid and binding obligation of SBF, enforceable against SBF in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, receivership, conservatorship, and similar laws affecting the enforcement of creditors' rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
ARTICLE IV — INDEMNIFICATION
Section 4.1 — Confirmation of MSA Indemnification Provisions
(a) The indemnification provisions of the MSA, including without limitation Section 9.02 thereof (providing for servicer indemnification for losses arising from the Servicer's breach of data-accuracy representations and servicing obligations), shall remain in full force and effect and shall apply to all Trust Receivables and all obligations of Clearview arising under this Amendment. Nothing in this Amendment shall be deemed to limit, diminish, or modify Clearview's indemnification obligations under the MSA.
(b) For the avoidance of doubt, Clearview's indemnification obligations under Section 9.02 of the MSA extend to any and all losses, liabilities, claims, damages, costs, or expenses (including reasonable attorneys' fees, consultant fees, expert fees, and court costs) incurred by SBF, the Depositor, the Trust, the Indenture Trustee, the Owner Trustee, the Noteholders, or any other transaction party arising from or related to any of the following:
(i) Any breach by Clearview of its representations, warranties, covenants, or obligations under this Amendment or the MSA (as amended hereby);
(ii) Any inaccuracy, error, or omission in any Investor Report, Static-Pool Report, data tape, servicing report, or other data or information provided by Clearview in connection with the Trust Receivables or the Securitization Transaction;
(iii) Any failure by Clearview to apply the Section 4.03 payment-application waterfall in the servicing of any Trust Receivable, whether resulting from manual error, system error, platform deficiency, software update, or otherwise;
(iv) Any system error, data migration issue, platform deficiency, or software malfunction in Clearview's servicing systems (including the ClearCore platform) that results in the misapplication of payments, the misclassification of delinquency or loss status, or the delivery of inaccurate data or reports; and
(v) Any third-party claims, regulatory actions, or investor losses arising from or attributable to Clearview's breach of its obligations or the inaccuracy of its representations and warranties under this Amendment.
(c) Clearview's indemnification obligations under this Section 4.1 and Section 9.02 of the MSA shall survive the termination or expiration of this Amendment and the MSA with respect to any claim arising from events, acts, or omissions occurring during the term of this Amendment.
ARTICLE V — MISCELLANEOUS PROVISIONS
Section 5.1 — Effect of Amendment
Except as expressly amended, modified, or supplemented by this Amendment, the MSA shall remain in full force and effect and is hereby ratified and confirmed in all respects. All references in the MSA to "this Agreement" or words of similar import shall be deemed to refer to the MSA as amended by this Amendment. In the event of any conflict or inconsistency between the provisions of this Amendment and the provisions of the MSA with respect to Trust Receivables, the provisions of this Amendment shall control. This Amendment shall not constitute a novation of the MSA or of any obligation of either Party thereunder, nor shall it release or discharge either Party from any obligation, liability, or duty arising under the MSA prior to the date of this Amendment.
Section 5.2 — Governing Law
This Amendment shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflicts-of-law principles that would require the application of the laws of any other jurisdiction, consistent with the governing-law provision set forth in Section 10.06 of the MSA.
Section 5.3 — Counterparts
This Amendment may be executed in one or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Amendment by facsimile, PDF, or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Amendment.
Section 5.4 — Entire Agreement
This Amendment, together with the MSA and the other transaction documents referenced herein (including the Sale and Servicing Agreement, the Indenture, the Receivables Purchase Agreement, and the Trust Agreement), constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous negotiations, proposals, agreements, understandings, representations, and warranties, whether oral or written, with respect to such subject matter.
Section 5.5 — Severability
If any provision of this Amendment is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision of this Amendment, and this Amendment shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. The Parties shall negotiate in good faith to replace any such invalid, illegal, or unenforceable provision with a valid, legal, and enforceable provision that, to the greatest extent possible, achieves the economic, business, and other purposes of the invalid, illegal, or unenforceable provision.
Section 5.6 — Headings
The article and section headings contained in this Amendment are for convenience of reference only and shall not be considered in interpreting or construing this Amendment or any provision hereof.
Section 5.7 — Amendment and Waiver
(a) No further amendment, modification, or supplement to this Amendment shall be effective unless made in writing and signed by each of the Parties hereto.
(b) With respect to Trust Receivables, no amendment, modification, or supplement to this Amendment shall be made or become effective without the prior written consent of the Indenture Trustee (Atlantic Fiduciary Services, Inc.) and, if then required by the terms of the Indenture, written confirmation from each of the Rating Agencies that such amendment, modification, or supplement will not result in a downgrade, qualification, or withdrawal of the then-current ratings assigned to the Notes.
(c) No waiver of any provision of this Amendment shall be effective unless made in writing and signed by the Party against whom enforcement of such waiver is sought. No waiver by any Party of any breach or default of any provision of this Amendment shall operate or be construed as a waiver of any other breach or default of such provision or of any other provision, nor shall any failure or delay by any Party in exercising any right, power, or privilege hereunder operate as a waiver thereof.
Section 5.8 — Successors and Assigns
(a) This Amendment shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
(b) Clearview shall not assign, transfer, or delegate its rights, interests, or obligations under this Amendment, in whole or in part, without the prior written consent of SBF and the Indenture Trustee, and any purported assignment, transfer, or delegation without such consent shall be null and void.
(c) SBF may assign its rights and interests under this Amendment to the Depositor, the Trust, or the Indenture Trustee without the consent of Clearview, provided that SBF shall promptly notify Clearview in writing of any such assignment.
Section 5.9 — Third-Party Beneficiaries
The Depositor, the Trust, the Indenture Trustee, and the Noteholders shall be express third-party beneficiaries of this Amendment and shall have the right to enforce the provisions of this Amendment as if they were parties hereto. Except as set forth in the preceding sentence, nothing in this Amendment, express or implied, is intended to or shall confer upon any person other than the Parties hereto and the express third-party beneficiaries any right, benefit, or remedy of any nature whatsoever under or by reason of this Amendment.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the Parties have caused this Amendment No. 1 to Master Servicing Agreement to be executed and delivered by their respective duly authorized officers as of the date first written above.
SKYBRIDGE FINTECH LTD.
By: ________
Name: Arun Mehta
Title: Chief Executive Officer & Co-Founder
Date: ________
By: ________
Name: Danielle Prescott
Title: Chief Financial Officer
Date: ________
CLEARVIEW LOAN SERVICING, INC.
By: ________
Name: Warren Pettigrew