Common use of Inability to Perform Services Clause in Contracts

Inability to Perform Services. In the event that the Administrator is unable, for any reason, to perform all or a material portion of the Services in compliance with the standards required by Section 3.03 of this Agreement for a period that is reasonably expected to exceed two (2) Business Days, where such failure to perform would, individually or in the aggregate, reasonably be expected to have a significant detrimental impact to the Administered Business, the Administrator shall promptly provide notice to the Ceding Companies of the Administrator’s inability to perform the applicable Services. Within sixty (60) days from the receipt of such notice, the Administrator shall deliver to the Ceding Companies a corrective action plan (the “Corrective Action Plan”) setting forth a strategy to remedy the inability of the Administrator to perform such Services (which may include, upon written consent of each Ceding Company, obtaining an alternative means of providing such Services) and a reasonable timeline to implement such strategy. The Administrator shall consider in good faith any changes to the Corrective Action Plan reasonably requested by a Ceding Company, and the Administrator shall use commercially reasonable efforts to implement such Corrective Action Plan as soon as reasonably practicable, subject to applicable Law. In no event shall the foregoing limit the obligation of the Administrator to perform such Services in accordance with the terms hereof or any remedy of the Ceding Companies under this Agreement or any of the other Transaction Agreements. The requirements of this Section 6.01 shall be in addition to the rights set forth in Section 8.02 and the obligations set forth in Section 10.01, and nothing herein shall relieve the Administrator from its obligation to cause to implement the Disaster Recovery Plans in order to resume the Services.

Inability to Perform Services. (a) In the event that the Administrator is unable, for any reason, unable to perform all or a material portion of the Services in compliance with the standards required by Section 3.03 of this Agreement for any reason for a period that is reasonably expected to exceed two (2) Business Days, where such failure to perform would, individually or in the aggregate, could reasonably be expected to have a significant detrimental impact to the Administered Businessexceed twenty (20) Business Days, the Administrator shall promptly provide notice to the Ceding Companies I▇▇ of the Administrator’s its inability to perform the applicable Services. Within sixty (60) days from the receipt of such notice, the Administrator Services and shall deliver to the Ceding Companies a corrective action plan (the “Corrective Action Plan”) setting forth a strategy to remedy the inability of the Administrator to perform such Services (which may include, upon written consent of each Ceding Company, cooperate with I▇▇ in obtaining an alternative means of providing such Services) and a reasonable timeline to implement such strategy. The Administrator shall consider be responsible for all fees, costs and expenses incurred in good faith order to obtain such alternative means of providing the applicable Services and in order to restore such Services. (b) In the event that the Administrator commits three (3) independent Material Breaches (as such term is defined below) during any changes rolling twelve (12) month period, I▇▇ will, at its option, initiate the dispute resolution process set forth in Section 18.03(a). If, after Level Three Negotiations, I▇▇ is not reasonably satisfied with the results thereof, the CEO or CFO of ILA’s ultimate parent will provide written notice to the Corrective Action Plan reasonably requested by a Ceding Company, CEO or CFO of the Administrator’s ultimate parent and the Administrator shall use commercially reasonable efforts to implement such Corrective Action Plan as soon as reasonably practicable, subject to applicable Law. In no event shall obtain an alternative means of providing the foregoing limit the obligation of the Administrator to perform such impacted Services in accordance with the terms hereof or any remedy of the Ceding Companies under this Agreement or any of the other Transaction Agreements. The requirements of this Section 6.01 shall be in addition pursuant to the rights service standards set forth in Section 8.02 and 4.02(a). In such event, the obligations Administrator shall be responsible for the incremental costs incurred in providing such alternative services. The term “Material Breach” shall mean a material breach of a material obligation under this Agreement by the Administrator, the occurrence of which is not subject to a good faith dispute between the Parties, that remains in existence ninety (90) calendar days after receipt by the Administrator of ILA’s written notice of such breach (which notice shall specify ILA’s view that such breach is a material breach of a material obligation hereunder), which breach shall not have been cured within such ninety (90) calendar day period; provided, however, that if the Administrator can demonstrate that, despite having used its commercially reasonable efforts to cure such failure within the ninety (90) calendar day period, it has not been able to effect such a cure, I▇▇ may, at its sole discretion, grant the Administrator additional time in which to effect such a cure. The remedy set forth in herein and ILA’s indemnification rights pursuant to Section 10.01, 13.02 shall be ILA’s sole and nothing herein shall relieve exclusive remedy with respect to any Material Breach that is not cured within the Administrator from its obligation to cause to implement the Disaster Recovery Plans in order to resume the Servicesforegoing cure period.