Servicer Defaults. If any one of the following events (a “Servicer Default”) shall occur and be continuing: (a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee to make such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; (b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07; (c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates); or (d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificates, by notice then given to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a “Termination Notice”), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “Service Transfer”); and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer. The Servicer shall within 20 Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, the Sellers, any Series Enhancer and the Investor Certificateholders with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 5 contracts
Sources: Pooling and Servicing Agreement (Citibank, N.A., as Depositor of Citibank Credit Card Issuance Trust), Pooling and Servicing Agreement (Citibank, N.A., as Depositor of Citibank Credit Card Issuance Trust), Pooling and Servicing Agreement (Citibank, N.A., as Depositor of Citibank Credit Card Issuance Trust)
Servicer Defaults. If any one of the following events (a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee to make such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; provided, however, that any such failure caused by a nonwillful act of the Servicer shall not constitute a Servicer Default if the Servicer promptly remedies such failure within five Business Days after receiving notice of such failure or otherwise becoming aware of such failure;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) an Adverse Effect and which continues unremedied for a period of 60 days after the date on which notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 1050% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 1050% of the aggregate unpaid principal amount of all Series to which adversely affected by such failure relatesfailure); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect an Adverse Effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect Adverse Effect continues for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less than 1050% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 1050% of the aggregate unpaid principal amount of all Series to which adversely affected by such representation, warranty or certification relatescertification); or
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligationsobligations or such Transferor or Holder of the Transferor Certificate shall consent to, or fail to object to, the filing of any such petition, or, if such Transferor or Holder of the Original Transferor Certificate shall so object to the filing of any such petition, such petition shall not have been dismissed within 60 days of the filing thereof; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificates, by notice then given to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a “Termination Notice”), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereofAgreement; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section subsection 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate Officers’ Certificates of the Sellers Transferors to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall shall, except in the case of a Servicer Default set forth in subsection 10.01(d), grant a the Transferors the right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers Transferors shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they the Transferors are exercising such right of first refusal. If they the Transferors exercise such right of first refusal, the Sellers Transferors shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “Service Transfer”); and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer. The Servicer shall within 20 Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, the Sellers, each Transferor and any Series Enhancer and the Investor Certificateholders with an Officer’s Certificate of the Servicer giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 5 contracts
Sources: Pooling and Servicing Agreement (American Express Receivables Financing Corp Iv LLC), Pooling and Servicing Agreement (American Express Credit Account Master Trust), Pooling and Servicing Agreement (American Express Receivables Financing Corp Iv LLC)
Servicer Defaults. If any one of the following events (a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or (including without limitation with respect to give instructions or to give notice to the Trustee to make such payment, transfer or deposit Collections) as required by this Agreement on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction is required to be made;
(b) any failure by the Servicer to give instructions or notice to the Administrative Agent as required by this Agreement, or to deliver any required Monthly Report or other Required Reports hereunder on or before the date occurring two Business Days after the date such instruction, notice or report is required to be made or given, as the case may be, under the terms of this Agreement or any SupplementAgreement;
(bc) any failure on the part of the Servicer (A) duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement the other Transaction Documents to which has the Servicer is a material adverse effect on party and the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which same continues unremedied for a period of 60 10 days after the earlier to occur of (i) the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the TrusteeAdministrative Agent and (ii) the date on which the Servicer becomes aware thereof, or (B) duly to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relatesobserve or perform its obligations under Section 5.4(o) or Section 6.4(j); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
(cd) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement Transaction Document or in any certificate delivered pursuant to this Agreement or any Supplement Transaction Document shall prove to have been incorrect in any material respect when made, and which has a material (if capable of being cured without any adverse effect impact on the rights Purchasers or the collectibility of the Investor Certificateholders of any Series (which determination shall Assets) continues to be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues unremedied for a period of 60 10 days after the earlier to occur of (i) the date on which written notice thereof, of such incorrectness requiring the same to be remedied, remedied shall have been given to the Servicer by the Trustee, or Administrative Agent and (ii) the date on which the Servicer becomes aware thereof;
(e) an Insolvency Event shall occur with respect to the Servicer;
(f) any material delegation of the Servicer’s duties that is not permitted by Section 6.1;
(g) any financial or other information reasonably requested by the Administrative Agent or any Purchaser is not provided as requested within a reasonable amount of time following such request;
(h) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of $10,000,000, individually or in the aggregate, and the Trustee by continuance of such judgment, decree or order unsatisfied and in effect for any period of more than 60 consecutive days without a stay of execution;
(i) the Holders of Investor Certificates evidencing not less than 10% failure of the aggregate unpaid principal amount of all Investor Certificates (or, Servicer to make any payment due with respect to any recourse debt or other obligations, which debt or other obligations are in excess of $10,000,000, individually or in the aggregate, or the occurrence of any event or condition that would at such representationtime permit acceleration of such recourse debt or other obligations;
(j) CapitalSource Inc.’s Consolidated Tangible Net Worth is less than the TNW Test Level;
(k) a payment default or other default, warranty termination event or certification other similar event has occurred and is continuing (beyond any applicable grace period) under any Other CapitalSource Facilities or under or with respect to any repurchase agreement, securitization or any other facility providing indebtedness for borrowed money, in each case, in an amount greater than $10,000,000 to or for the benefit of CapitalSource Inc. or any of its Subsidiaries (except for those securitizations or other facilities listed on Schedule IX, as the same may be updated from time to time as mutually agreed by the Seller and the Administrative Agent), and at such time such event permits the lender or holder of rights thereunder to terminate commitments, accelerate the obligations owing thereunder or otherwise exercise remedies thereunder; provided that does a Servicer Default arising as a result of a default, termination event, margin call or other similar event with respect to a repurchase agreement or series of repurchase agreements shall be deemed to be cured with the effect of being considered not relate to all Serieshave occurred, 10% to the extent that either (i) the surrender of the aggregate unpaid principal related collateral in whole to (or liquidation of the related collateral in whole by) the repo counterparty under such repurchase agreement (by itself or together with any payments made, or additional collateral provided to, the repo counterparty) constitutes satisfaction in full of the obligations of CapitalSource Inc. and its Subsidiaries thereunder, or (ii) the deficiency amount under such repurchase agreement or series of all Series repurchase agreements after application of collateral proceeds with respect to which such representationthe sale or liquidation of the related collateral is less than $10,000,000;
(l) the Servicer fails in any material respect to comply with the Credit and Collection Policy regarding the servicing of the Collateral;
(m) the Servicer consents or agrees to, warranty or certification relates)otherwise permits to occur, any amendment, modification, change, supplement or rescission of or to the Credit and Collection Policy (after the adoption of same) in whole or in part that could be reasonably expected to have a Material Adverse Effect upon the Collateral, the Administrative Agent or the Secured Parties, without the prior written consent of the Administrative Agent; or
(dn) the Servicer shall consent fails (or fails to cause the appointment of a conservator or receiver or liquidator related REO Asset Owner) in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or material respect to comply with the provisions herein relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets servicing and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage administering of any applicable insolvency or reorganization statute, make any assignment for REO Asset; then notwithstanding anything herein to the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Defaultcontrary, so long as the any such Servicer Default shall not have been remedied, either remedied within any applicable cure period prior to the Trustee, or the Holders of Investor Certificates evidencing more than 50% date of the aggregate unpaid principal amount of all Investor CertificatesServicer Termination Notice (defined below), the Administrative Agent, by written notice then given to the Servicer (and with a copy to the Trustee and any Series Enhancement if given by the Investor CertificateholdersBackup Servicer) (a “Servicer Termination Notice”), may terminate all but not less than all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “Service Transfer”); and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer. The Servicer shall within 20 Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, the Sellers, any Series Enhancer and the Investor Certificateholders with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 4 contracts
Sources: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Servicer Defaults. If any one of the following events (a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to this Agreement or any Supplement or to instruct the Trustee to make such paymentany required drawing, transfer withdrawal, or deposit payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer transfer, deposit withdrawal or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any SupplementAgreement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 1050% of the aggregate unpaid principal amount Investor Interest of all any Series adversely affected thereby and continues to materially adversely affect such Investor Certificates Certificateholders for such period or the Servicer has actual knowledge of such failure; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.07;
(or, with respect to c) any such representation, warranty or certification that does made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has a material adverse effect on the Investor Certificateholders of any Series and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not relate to all Series, 10less than 50% of the aggregate unpaid principal amount Investor Interest of all any Series adversely affected thereby and continues to which materially adversely affect such representation, warranty Investor Certificateholders for such period or certification relates)the Servicer has actual knowledge of such failure; or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the aggregate unpaid principal amount of all Aggregate Investor CertificatesInterest, by notice then given in writing to the Servicer and each Credit Enhancement Provider (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a “Termination Notice”), may terminate all but not less than all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each SupplementAgreement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a “Service Transfer”)Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder including, including without limitation, paying to the Trustee the costs and expenses associated with such succession, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account, the Principal Account, and any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under the Credit Enhancement with respect to any Series to the Successor Servicer. Notwithstanding anything to the contrary herein, upon the occurrence of a Series 2001-1 Pay Out Event (as defined in the Supplement for Series 2001-1), a Series 2001-2 Pay Out Event (as defined in the Supplement for Series 2001-2, or a Series 2003-1 Pay Out Event (as defined in the Supplement for Series 2003-1, other than a default by the Credit Enhancement Provider under the applicable Supplement) or a Pay Out Event pursuant to Section 9.01(a), 9.01(b) or 9.01(c) of this Agreement or a Servicer Default pursuant to this Agreement, Holders of the Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Aggregate Investor Interest shall have the right to (i) instruct the Trustee to terminate all of the rights and obligations of the Servicer under the Agreement and (ii) appoint a Successor Servicer pursuant to the terms of this Agreement; provided, however, that with respect to the operation of this provision only, Investor Interest for Series 2001-1 shall mean the Maximum Commitment Amount (as defined in the Supplement for such Series). The Transferor hereby agrees not to take any action in any Supplement that would dilute or impair the rights of the Certificateholder for Series 2001-1 with respect to the operation of this provision. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (asubsection 10.01(a) above for a period of 10 Business Days after the applicable grace period or under paragraph (bsubsection 10.01(b) or (c) above for a period of 60 Business Days after the applicable grace periodDays, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Credit Enhancement Provider, the SellersTransferor, any Series Enhancer the Rating Agencies and the Holders of Investor Certificateholders Certificates with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 4 contracts
Sources: Pooling and Servicing Agreement (Cabela's Master Credit Card Trust), Pooling and Servicing Agreement (Cabela's Master Credit Card Trust), Pooling and Servicing Agreement (Cabela's Master Credit Card Trust)
Servicer Defaults. If any one of the following events (a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee to make such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; provided, however, that any such failure caused by a nonwillful act of the Servicer shall not constitute a Servicer Default if the Servicer promptly remedies such failure within five Business Days after receiving notice of such failure or otherwise becoming aware of such failure;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) an Adverse Effect and which continues unremedied for a period of 60 days after the date on which notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 1050% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 1050% of the aggregate unpaid principal amount of all Series to which adversely affected by such failure relatesfailure); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect an Adverse Effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect Adverse Effect continues for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less than 1050% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 1050% of the aggregate unpaid principal amount of all Series to which adversely affected by such representation, warranty or certification relatescertification); or
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligationsobligations or such Transferor or Holder of the Transferor Certificate shall consent to, or fail to object to, the filing of any such petition, or, if such Transferor or Holder of the Original Transferor Certificate shall so object to the filing of any such petition, such petition shall not have been dismissed within 60 days of the filing thereof; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificates, by notice then given to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a “"Termination Notice”"), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereofAgreement; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section subsection 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate Officers' Certificates of the Sellers Transferors to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall shall, except in the case of a Servicer Default set forth in subsection 10.01(d), grant a the Transferors the right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ ' Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ ' Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers Transferors shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they the Transferors are exercising such right of first refusal. If they the Transferors exercise such right of first refusal, the Sellers Transferors shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “"Service Transfer”"); and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer. The Servicer shall within 20 Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, the Sellers, each Transferor and any Series Enhancer and the Investor Certificateholders with an Officer’s 's Certificate of the Servicer giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 3 contracts
Sources: Pooling and Servicing Agreement (American Express Receivables Financing Corp Ii), Pooling and Servicing Agreement (American Express Credit Account Master Trust), Pooling and Servicing Agreement (American Express Credit Account Master Trust)
Servicer Defaults. If any one of the following events (a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give notice or instructions or to give notice to the Indenture Trustee to make such any required withdrawal or payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice Servicer is required to be made or given, as the case may be, do so under the terms of this Agreement Agreement, the Indenture or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Days;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect an Adverse Effect on the Investor Certificateholders Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) Series, Class or Tranche and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the Collateral Agent or to the Servicer Servicer, the Owner Trustee, the Indenture Trustee and the Trustee Collateral Agent by Holders of Investor Certificates Notes evidencing not less than 1050% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% Classes or Tranches of the aggregate unpaid principal amount of all Series to which Notes sustaining such failure relates)Adverse Effect; or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 7.02, 7.05 and 8.077.06;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect an Adverse Effect on the rights of the Investor Certificateholders Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) Series, Class or Tranche and which material adverse effect Adverse Effect continues for a period of 60 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the Collateral Agent, or to the Servicer Servicer, the Owner Trustee, the Indenture Trustee and the Trustee Collateral Agent by the Holders of Investor Certificates Notes evidencing not less than 1050% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% Classes or Tranches of the aggregate unpaid principal amount of all Series Notes to which such representation, warranty or certification relates); or;
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) any other Servicer Default described in any Indenture Supplement; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificatesaffected Notes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee and any Series Enhancement if given by the Investor CertificateholdersNoteholders) (a “Termination Notice”), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereofAgreement; provided, however, if within 60 days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(csubsection 10.02(a) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall grant a right assume the role of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each SupplementSuccessor Servicer. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “Service Transfer”); ) and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables Collateral provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the ReceivablesCollateral, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables Collateral in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the SellersOwner Trustee, any Series Enhancer the Collateral Agent and the Investor Certificateholders Transferor with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 3 contracts
Sources: Transfer and Servicing Agreement (Chase Card Funding LLC), Transfer and Servicing Agreement (Chase Issuance Trust), Transfer and Servicing Agreement (Chase Issuance Trust)
Servicer Defaults. If any one of the following events (a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Trustee to make such paymentany required drawing, transfer withdrawal, or deposit payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer transfer, deposit withdrawal or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any SupplementAgreement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 1050% of the aggregate unpaid principal amount Investor Interest of all any Series adversely affected thereby and continues to materially adversely affect such Investor Certificates Certificateholders for such period; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.07;
(or, with respect to c) any such representation, warranty or certification that does made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has a material adverse effect on the Investor Certificateholders of any Series and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not relate to all Series, 10less than 50% of the aggregate unpaid principal amount Investor Interest of all any Series adversely affected thereby and continues to which materially adversely affect such representation, warranty or certification relates)Investor Certificateholders for such period; or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the aggregate unpaid principal amount of all Aggregate Investor CertificatesInterest, by notice then given in writing to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a “Termination Notice”), may terminate all but not less than all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each SupplementAgreement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a “Service Transfer”)Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder including, including without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account, the Principal Account, and any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds, Recoveries and Interchange (if any) applicable to the Trust. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under the Credit Enhancement with respect to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (asubsection 10.01(a) above for a period of 10 Business Days after the applicable grace period or under paragraph (bsubsection 10.01(b) or (c) above for a period of 60 Business Days after the applicable grace periodDays, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Credit Enhancement Provider, the Sellers, any Series Enhancer Seller and the Holders of Investor Certificateholders Certificates with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 3 contracts
Sources: Pooling and Servicing Agreement (BA Credit Card Trust), Pooling and Servicing Agreement (BA Credit Card Trust), Pooling and Servicing Agreement (Mbna America Bk Nat Assoc Mbna Master Credit Card Trust Ii)
Servicer Defaults. If any one of the following events (a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Trustee to make such paymentany required drawing, transfer withdrawal, or deposit payment under any Enhancement on or before the date occurring five Business Days after the date such payment, transfer transfer, deposit, withdrawal or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any SupplementAgreement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 1050% of the aggregate unpaid principal amount Invested Amount of all any Series adversely affected thereby and continues to materially adversely affect such Investor Certificates Certificateholders for such period; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.07;
(or, with respect to c) any such representation, warranty or certification that does made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has a material adverse effect on the Investor Certificateholders of any Series and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not relate to all Series, 10less than 50% of the aggregate unpaid principal amount Invested Amount of all any Series adversely affected thereby and continues to which materially adversely affect such representation, warranty or certification relates)Investor Certificateholders for such period; or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the aggregate unpaid principal amount of all Investor CertificatesAggregate Invested Amount, by notice then given in writing to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a “"Termination Notice”"), may terminate all but not less than all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each SupplementAgreement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a “Service Transfer”)Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder including, including without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or the Principal Account, and any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under the Enhancement with respect to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (asubsection 10.01(a) above for a period of 10 Business Days after the applicable grace period or under paragraph (bsubsection 10.01(b) or (c) above for a period of 60 Business Days after the applicable grace periodDays, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Enhancement Provider, the Sellers, any Series Enhancer Transferor and the Holders of Investor Certificateholders Certificates with an Officer’s 's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 3 contracts
Sources: Pooling and Servicing Agreement (Bank One Delaware National Association), Pooling and Servicing Agreement (First Usa Credit Card Master Trust), Pooling and Servicing Agreement (First Usa Credit Card Master Trust)
Servicer Defaults. If any one of the following events (a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee to make such payment, transfer or deposit or to give notice to the Trustee as to any required drawing or payment under any Enhancement on or before the date occurring five Business Days after the date such payment, transfer transfer, deposit or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; provided, however, that any such failure caused by a nonwillful act of the Servicer shall not constitute a Servicer Default if the Servicer promptly remedies such failure within five Business Days after receiving notice of such failure or otherwise becoming aware of such failure;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Supplement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) outstanding and which continues unremedied for a period of 60 days after the date on which the written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by and which continues to materially adversely affect the Trustee, or to rights of the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and Section 8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (then outstanding and which determination shall continues to be made without regard incorrect in any material respect and which continues to whether funds are then available pursuant to affect materially and adversely the rights of the Certificateholders of any Series Enhancement) and which material adverse effect continues for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less Undivided Interests aggregating more than 1050% of the aggregate unpaid principal amount Invested Amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates)adversely affected thereby; or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the such Servicer Default shall not have been remedied, either the Trustee, Trustee or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the aggregate unpaid principal amount of all Investor CertificatesAggregate Invested Amount, by notice then given in writing to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a “"Termination Notice”"), may terminate all but not less than all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; providedthereof and appoint a new Servicer (a "Service Transfer"). The rights and interests of the Transferor Interest will not be affected by any Service Transfer. The Trustee, however, if within 60 days of receipt of upon giving or receiving a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall immediately notify the Trustee prior to the Record Date for the Distribution Date Rating Agencies and any Enhancement Provider of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplementnotice. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a “Service Transfer”)Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Recoveries. The Servicer shall within 20 Business Days promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (asubsection 10.01(a) above for a period of 10 Business Days after the applicable grace period or under paragraph (bsubsection 10.01(b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Enhancement Provider, the Sellers, any Series Enhancer Transferors and the Holders of Investor Certificateholders Certificates with an Officer’s 's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations. The Servicer shall immediately notify the Trustee in writing of any Servicer Default.
Appears in 3 contracts
Sources: Master Pooling and Servicing Agreement (American Express Centurion Bank), Master Pooling and Servicing Agreement (American Express Centurion Bank), Master Pooling and Servicing Agreement (American Express Credit Account Master Trust)
Servicer Defaults. If any one of the following events (a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Trustee to make such paymentany required drawing, transfer withdrawal, or deposit payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer transfer, deposit, withdrawal or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any SupplementAgreement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the TrusteeTrustee or the Transferor, or to the Servicer Servicer, the Transferor and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 1050% of the aggregate unpaid principal amount Investor Interest of all any Series adversely affected thereby and continues to materially adversely affect such Investor Certificates (or, with respect to any Certificateholders for such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates)period; or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and Section 8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues to be incorrect in any material adverse effect continues respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the TrusteeTrustee or the Transferor, or to the Servicer Servicer, the Transferor and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 1050% of the aggregate unpaid principal amount Investor Interest of all any Series adversely affected thereby and continues to materially adversely affect such Investor Certificates (or, with respect to any Certificateholders for such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates)period; or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the aggregate unpaid principal amount of all Aggregate Investor CertificatesInterest, by notice then given in writing to the Servicer (and to the Trustee and any Series Enhancement the Transferor if given by the Investor Certificateholders) (a “Termination Notice”), may terminate all but not less than all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each SupplementAgreement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a “Service Transfer”)Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder including, including without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account, the Principal Account, and any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds, Recoveries and Interchange (if any) applicable to the Trust. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under the Credit Enhancement with respect to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (asubsection 10.01(a) above for a period of 10 Business Days after the applicable grace period or under paragraph (bsubsection 10.01(b) or (c) above for a period of 60 Business Days after the applicable grace periodDays, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Credit Enhancement Provider, the Sellers, any Series Enhancer Transferor and the Holders of Investor Certificateholders Certificates with an Officer’s Certificate of the Servicer giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 3 contracts
Sources: Pooling and Servicing Agreement, Pooling and Servicing Agreement, Pooling and Servicing Agreement (BA Master Credit Card Trust II)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee to make such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as given by the case may be, Servicer under the terms of this Agreement Indenture and such failure remains unremedied for two Business Days; provided, however, that if the Servicer is unable to make a payment, transfer or any Supplementdeposit when due and such failure is as a result of circumstances beyond the Servicer’s control, the grace period shall be extended to five Business Days;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement Indenture or any Supplement other Transaction Document to which has the Servicer is a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) party and which such failure continues unremedied for a period of 60 30 days after the earlier of the date on which the Servicer has actual knowledge of the failure and the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less than 1025% or more of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% Principal Amount of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07Notes;
(c) any representation, representation and warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement Indenture shall prove to have been incorrect in any material respect when made, which made and has a material and adverse effect impact on the rights Trustee’s interest in the Pledged Loans and other Pledged Assets and the Servicer is not in compliance with such representation or warranty within 30 Business Days after the earlier of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues for a period of 60 days after the date on which the Servicer has actual knowledge of such breach and the date on which written notice thereof, of such breach requiring the same to that such breach be remedied, shall have been given to the Servicer by the Trustee, Trustee or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less than 1025% or more of the aggregate unpaid principal amount Principal Amount of all Investor Certificates the Notes;
(or, d) an Insolvency Event shall occur with respect to any such representation, warranty the Servicer or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates)Performance Guarantor; or
(de) the Servicer shall consent fail to deliver the appointment reports described in Section 8.1 of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer this Indenture and such decree or order failure shall have remained in force undischarged or unstayed continue for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Defaultfive Business Days. THEN, so long as the such Servicer Default shall not have been remediedbe continuing, either the Trustee, or the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificates, Requisite Percentage by notice then given in writing to the Servicer (and to Servicer, the Issuer, the Trustee and any Series Enhancement if given by the Investor Certificateholders) each Rating Agency (a “Termination Notice”), may terminate all but not less than all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of Indenture (such termination being herein called a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement“Service Transfer”). After receipt by the Servicer and the Trustee of a such Termination NoticeNotice and subject to the terms of Section 12.2(a), and on the Trustee shall automatically assume the responsibilities of the Servicer hereunder until the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.02, 12.2 and all authority and power of the Servicer under this Agreement Indenture shall pass to and be vested in the Trustee or such Successor Servicer (a “Service Transfer”); Servicer, as the case may be, without further action on the part of any Person, and, without limitation, the Trustee at the direction of the Holders of Requisite Percentage (which authorization is coupled with an interest and is irrevocable) is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables Pledged Loans provided for under this AgreementIndenture, including without limitation all authority over all any Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, deposit in the Collection Account, Control Account or which shall thereafter be received by the Servicer with respect to the ReceivablesPledged Loans, and in assisting the Successor Servicer in enforcing all rights under this Indenture including, without limitation, allowing the Successor Servicer’s personnel access to the Servicer’s premises for the purpose of collecting payments on the Pledged Loans made at such premises. The Servicer shall within 20 Business Days promptly transfer its electronic records relating to the Receivables Pledged Loans to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables Pledged Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer’s officers and employees. To the extent that compliance with this Section 12.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterest and as shall be satisfactory in form and substance to the Successor Servicer. Notwithstanding The Servicer hereby consents to the foregoingentry against it of an order for preliminary, a delay in temporary or failure permanent injunctive relief by any court of performance referred competent jurisdiction, to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence ensure compliance by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms provisions of this Agreement and the Servicer shall provide the Trustee, the Sellers, any Series Enhancer and the Investor Certificateholders with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligationsparagraph.
Appears in 3 contracts
Sources: Indenture and Servicing Agreement (Wyndham Worldwide Corp), Indenture and Servicing Agreement (Wyndham Worldwide Corp), Indenture and Servicing Agreement (Wyndham Worldwide Corp)
Servicer Defaults. If any one of the following events (subject to the last paragraph of this Section 7.01, a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to Indenture Trustee pursuant to Article VIII of the Indenture (as modified by any Indenture Supplement) or to instruct Indenture Trustee to make such paymentany required drawing, transfer withdrawal or deposit payment under any Enhancement on or before the later of (i) the date occurring five 10 Business Days after the date such payment, transfer transfer, deposit, withdrawal or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement Agreement, the Indenture or any SupplementIndenture Supplement or (ii) three Business Days after written notice of such failure shall have been given to Servicer;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Investor Certificateholders Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee, or to the Servicer and the Indenture Trustee by the Holders of Investor Certificates evidencing not less than 1025% of the aggregate unpaid principal amount Outstanding Amount of all Investor Certificates (or, with respect any Series adversely affected thereby and continues to any materially adversely affect such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which Holders for such failure relates)period; or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07Section 5.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues to be incorrect in any material adverse effect continues respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee, or to the Servicer and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing not less than 1025% of the aggregate unpaid principal amount Outstanding Amount of all Investor Certificates (or, with respect any Series adversely affected thereby and continues to any materially adversely affect such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which Holders for such representation, warranty or certification relates)period; or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, ; or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then;
(e) with respect to any Series, any other event specified in the event of any Servicer DefaultIndenture Supplement for such Series, then, so long as the such Servicer Default shall not have been remediedremedied or waived, either the Indenture Trustee, or the Majority Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificatesoutstanding Series, by notice then given in writing to the Servicer (and to the Indenture Trustee and any Series Enhancement if given by the Investor CertificateholdersMajority Holders) and to any Enhancement Provider entitled thereto pursuant to the applicable Indenture Supplement (a “Termination Notice”), may terminate all but not less than all of the rights and obligations (other than unsatisfied obligations for acts or omissions during its tenure as Servicer) of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of Agreement. Upon Indenture Trustee’s receipt of notice, or actual knowledge of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate Responsible Officer of Indenture Trustee, of the Sellers to the effect that the occurrence of a Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination NoticeDefault, the Indenture Trustee shall grant a right promptly notify each Rating Agency of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each SupplementServicer Default. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Indenture Trustee pursuant to Section 10.027.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “Service Transfer”); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate with the Indenture Trustee and such the Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including the transfer to such the Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account or any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to Issuer. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 7.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. Servicer shall, on the date of any Service Transfer, transfer all of its rights and obligations under the Enhancement with respect to any Series to the Successor Servicer. Servicer being terminated shall bear all costs of a Service Transfer, including but not limited to those of Indenture Trustee reasonably allocable to specific employees and overhead, legal fees and expenses, accounting and financial consulting fees and expenses, and costs of amending this Agreement, if necessary. Notwithstanding the foregoing, a any delay in or failure of performance referred to in paragraph (aSection 7.01(a) above for a period of 10 ten Business Days after the applicable grace period or under paragraph Section 7.01(b) or (c) for a period of 60 days (in addition to any period provided in Section 7.01(a), (b) or (c)) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default until the expiration of such additional ten Business Days or 60 days, respectively, if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornados, earthquakes, floods nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using the obligation to use its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Sellerseach Rating Agency, any Series Enhancer Enhancement Provider entitled thereto pursuant to the relevant Indenture Supplement and the Investor Certificateholders Transferor with an Officer’s Certificate giving prompt immediate notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts to so to perform its obligations.
Appears in 3 contracts
Sources: Transfer and Servicing Agreement (First National Funding LLC), Transfer and Servicing Agreement (First National Funding LLC), Transfer and Servicing Agreement (First National Master Note Trust)
Servicer Defaults. If any one of the following events (each, a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make deliver to the related Trustee for deposit in any payment, transfer of the Accounts or deposit the Certificate Distribution Account any required payment or to give instructions or to give notice to direct the Indenture Trustee to make such paymentany required distributions therefrom, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;
(b) which failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days three Business Days after discovery of such failure by an officer of the Servicer or after the date on which written notice of such failure, requiring the same to be remedied, shall have been given (i) to the Servicer by the Trustee, related Trustee or (ii) to the Servicer and to the Trustee Trustees by the Holders of Investor Certificates Notes, evidencing not less than 1025% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% Outstanding Amount of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07Notes;
(cb) any representation, warranty or certification made failure by the Servicer (or so long as the Servicer is AHFC, the Seller) duly to observe or to perform in any material respect any other covenants or agreements of the Servicer (or so long as the Servicer is AHFC, the Seller) set forth in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when madeother Basic Document, which has a material adverse effect on failure shall (i) materially and adversely affect the rights of the Investor Certificateholders of any Series or Noteholders and (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancementii) and which material adverse effect continues continue unremedied for a period of 60 90 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given (A) to the Servicer or the Seller (as the case may be) by the Trustee, related Trustee or (B) to the Servicer or the Seller (as the case may be), and to the related Trustee by the Holders of Investor Certificates Notes, evidencing not less than 1025% of the aggregate unpaid principal amount Outstanding Amount of all Investor Certificates the Notes;
(or, c) the occurrence of an Insolvency Event with respect to any such representation, warranty the Seller or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates)Servicer; or
(d) any failure by the Servicer shall consent to deliver any information, report, certification, attestation or accountants' letter when and as required, which continues unremedied for ten calendar days after the appointment date on which such information, report, certification, attestation or accountants' letter was required to be delivered then, and in each and every case, other than in the case of a conservator or receiver or liquidator Servicer Default set forth in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Defaultclause (d) above, so long as the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing more not less than 5025% of the aggregate unpaid principal amount Outstanding Amount of all Investor Certificatesthe Notes (or, if the Notes have been paid in full and the Indenture has been discharged in accordance with its terms, by holders of Certificates evidencing not less than 25% of the Percentage Interests) by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee and any Series Enhancement if given by the Investor CertificateholdersNoteholders) (a “Termination Notice”), may terminate all but the rights and obligations (other than the obligations set forth in Section 6.02 that accrued on or prior to the effective date of the termination) of the Servicer under this Agreement. In the case of a Servicer Default set forth in clause (d) above, so long as the Servicer Default shall not less have been remedied, the Issuer (or the Administrator, acting on behalf of the Issuer) shall be entitled to terminate, either (i) with the Indenture Trustee's consent or (ii) in its sole discretion if a Successor Servicer (other than all the Indenture Trustee) has already been appointed, the rights and obligations of the Servicer as Servicer servicer under this Agreement and in and Agreement; provided that to the Receivables and extent that any provision of this Agreement expressly provides for the proceeds thereof; provided, however, if within 60 days survival of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate certain rights or obligations following termination of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Noticeas servicer, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest such provision shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplementgiven effect. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a Termination Notice, and on On or after the date that a Successor Servicer is appointed by the Trustee pursuant to Section 10.02specified in such written notice, all authority and power of the Servicer under this Agreement shall Agreement, whether with respect to the Notes, the Certificates or the Receivables or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer (a “Service Transfer”)as may be appointed under Section 7.02; and, without limitation, the Indenture Trustee is and the Owner Trustee are hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf for the benefit of the predecessor Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and or accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfernotice of termination, whether to complete the transfer and endorsement of the Receivables and related documents, or otherwise. The predecessor Servicer agrees to shall cooperate with the Trustee and such Successor Servicer and the Trustees in effecting the termination of the responsibilities and rights of the predecessor Servicer to conduct servicing hereunderunder this Agreement, including the transfer to such the Successor Servicer for administration by it of all authority of cash amounts that shall at the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer time be held by the predecessor Servicer for deposit, or which have been deposited by the predecessor Servicer, in the Collection Account, Accounts or which shall the Certificate Distribution Account or thereafter be received with respect to the Receivables, Receivables and in assisting all Payments Ahead that shall at that time by held by the Successor predecessor Servicer. The Servicer shall within 20 Business Days transfer its electronic records relating to All reasonable costs and expenses (including servicer conversion costs and attorneys' fees) incurred in connection with transferring the Receivables Receivable Files to the Successor Servicer in and amending this Agreement to reflect such electronic form succession as the Successor Servicer may reasonably request and shall promptly transfer pursuant to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require be paid by the predecessor Servicer to disclose to the Successor Servicer information upon presentation of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into reasonable documentation of such customary licensing costs and confidentiality agreements as the Servicer shall deem necessary to protect its interestexpenses. Notwithstanding the foregoing, a delay Any costs or expenses incurred in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute connection with a Servicer Default if such delay shall constitute an expense of administration under Title 11 of the United States Bankruptcy Code or failure could not be prevented by any other applicable Federal or State bankruptcy laws. Upon receipt of notice of the exercise occurrence of reasonable diligence by the a Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the TrusteeDefault, the Sellers, any Series Enhancer and the Investor Certificateholders with an Officer’s Certificate giving prompt Indenture Trustee shall give notice of such failure or delay by it, together with a description of its efforts so thereof to perform its obligationseach Rating Agency.
Appears in 3 contracts
Sources: Sale and Servicing Agreement (Honda Auto Receivables 2007-2 Owner Trust), Sale and Servicing Agreement (Honda Auto Receivables 2007-1 Owner Trust), Sale and Servicing Agreement (American Honda Receivables Corp)
Servicer Defaults. If any one of the following events (a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee to make such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit transfer, deposit, or such instruction or notice is required to be made or givengiven by Servicer, as the case may be, under the terms of this Agreement Agreement, the Indenture or any Indenture Supplement;; or
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Investor Certificateholders Noteholders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and ), which continues unremedied for a period of 60 days after the date on which written notice of such failurefailure requiring the same to be remedied shall have been given to Servicer by Indenture Trustee, or to Servicer and Indenture Trustee by the Noteholders holding not less than 25% of the Outstanding Amount (or, with respect to any failure that does not relate to all Series, 25% of the aggregate outstanding principal amount of all Series to which such failure relates); or Servicer shall delegate its duties under this Agreement except as permitted by Section 5.2 or 5.7, a Responsible Officer of Indenture Trustee has actual knowledge of such delegation and such delegation continues unremedied for 15 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee, or to the Servicer and the Indenture Trustee by Holders of Investor Certificates evidencing Noteholders holding not less than 1025% of the aggregate unpaid principal amount of all Investor Certificates (Outstanding Amount; or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders Noteholders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues to be incorrect in any material adverse effect continues respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee, or to the Servicer and the Indenture Trustee by the Holders of Investor Certificates evidencing Noteholders holding not less than 1025% of the aggregate unpaid principal amount of all Investor Certificates Outstanding Amount (or, with respect to any such representation, warranty or certification that does not relate to all Series, 1025% of the aggregate unpaid outstanding principal amount of all Series to which such representation, warranty or certification relates); or;
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its propertyfail generally to, or admit in writing its inability to, pay its debts as they become due; or a decree or order of proceeding shall have been instituted in a court or agency or supervisory authority having jurisdiction in the premises seeking a decree or order for relief in respect of Servicer in an involuntary case under any Debtor Relief Law, or for the appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or receiver other similar official of such Person or liquidator in for any insolvency, readjustment substantial part of debt, marshalling of assets and liabilities or similar proceedingsits property, or for the winding-up or liquidation of its affairsaffairs and, if instituted against Servicer, any such proceeding shall have been entered against the Servicer and such decree or order shall have remained in force undischarged continue undismissed or unstayed and in effect, for a period of 60 consecutive days, or any of the actions sought in such proceeding shall occur; or the Servicer shall admit commencement by Servicer, of a voluntary case under any Debtor Relief Law, or such Person’s consent to the entry of an order for relief in writing an involuntary case under any Debtor Relief Law, or consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or other similar official of such Person or for any substantial part of its inability to pay its debts generally as they become dueproperty, file a petition to take advantage of or any applicable insolvency or reorganization statute, make any general assignment for the benefit of its creditors creditors; or voluntarily suspend payment such Person or any Subsidiary of its obligationssuch Person shall have taken any corporate action in furtherance of any of the foregoing actions; or
(e) with respect to any Series, any other event specified in the Indenture Supplement for such Series, then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates evidencing Noteholders holding more than 50% of the aggregate unpaid principal amount of all Investor CertificatesOutstanding Amount, by notice then given to the Servicer (and to the Indenture Trustee and any Series Enhancement Provider entitled thereto pursuant to the relevant Indenture Supplement if given by the Investor CertificateholdersNoteholders) (a “Termination Notice”), may terminate all but not less than all the rights and obligations of the Servicer Servicer, as Servicer Servicer, under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt . Upon the occurrence of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination NoticeDefault, the Indenture Trustee shall grant a right promptly notify each Rating Agency of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each SupplementServicer Default. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Indenture Trustee pursuant to Section 10.027.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer Servicer
(a “Service Transfer”); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperate with the Indenture Trustee and such the Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including the transfer to such the Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds. The Servicer shall within 20 Business Days promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 7.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary appropriate to protect its interestinterests. Notwithstanding the foregoing, a any delay in or failure of performance referred to in paragraph (aunder Section 7.1(a) above for a period of 10 five Business Days after the applicable grace period or under paragraph Section 7.1(b) or (c) for a period of 60 days (in addition to any period provided in Section 7.1(a), (b) or (c)) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default until the expiration of such additional five Business Days or 60 days, respectively, if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using the obligation to use its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Sellerseach Rating Agency, any Series Enhancer Enhancement Provider entitled thereto pursuant to the relevant Indenture Supplement and the Investor Certificateholders Transferor with an Officer’s Certificate giving prompt immediate notice of such failure or delay by it, together with a description of its efforts to so to perform its obligations.
Appears in 2 contracts
Sources: Transfer and Servicing Agreement, Transfer and Servicing Agreement (Alliance Data Systems Corp)
Servicer Defaults. If any one of the following events (a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct Trustee to make such paymentany required drawing, transfer withdrawal, or deposit payment under any Credit Enhancement on or before the date occurring five ten Business Days after the date such payment, transfer transfer, deposit withdrawal or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any SupplementAgreement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agreement, which has a material adverse effect on the Investor Certificateholders Holders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 1025% of the aggregate unpaid principal amount Investor Interest of all any Series adversely affected thereby and continue to materially adversely affect such Investor Certificates (or, with respect to any Holders for such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates)period; or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07Section 8.7;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders Holders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues to be incorrect in any material adverse effect continues respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 1025% of the aggregate unpaid principal amount Investor Interest of all any Series adversely affected thereby and continues to materially adversely affect such Investor Certificates (or, with respect to any Holders for such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates)period; or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation liquidating of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the aggregate unpaid principal amount of all Aggregate Investor CertificatesInterest, by notice then given in writing to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor CertificateholdersHolders) (a “"Termination Notice”"), may terminate all but not less than all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each SupplementAgreement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a “Service Transfer”)Servicer; and, without limitation, the and Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes purpose of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account, the Excess Funding Account, and any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Unearned Premiums applicable to the Trust. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under the Credit Enhancement with respect to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (asubsection 10.1(a) above for a period of 10 30 Business Days after the applicable grace period or under paragraph (bsubsection 10.1(b) or (c) above for a period of 60 Business Days after the applicable grace periodDays, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, the Sellersany Credit Enhancement Provider, any Series Enhancer Transferor and the Holders of Investor Certificateholders Certificates with an Officer’s 's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Mellon Bank Premium Finance Master Trust), Pooling and Servicing Agreement (Mellon Bank Premium Finance Loan Master Trust)
Servicer Defaults. If any one of the following events (a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to make such payment, transfer the terms of this Agreement or deposit any Supplement on or before the date occurring five 5 Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the interests hereunder of the Investor Certificateholders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07, a Responsible Officer of the Trustee has actual knowledge of such delegation and such delegation continues unremedied for 15 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues to be incorrect in any material adverse effect continues respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates); or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificates, by notice then given to the Servicer (and to the Trustee and any Series Enhancement Enhancer entitled thereto pursuant to the relevant Supplement if given by the Investor Certificateholders) (a “"Termination Notice”"), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s 's Certificate of the Sellers Transferors to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a offer the Transferors the right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ ' Interest on the Distribution Date in next succeeding 105 days after the next calendar monthreceipt by the Servicer of a Termination Notice. The purchase price for the Certificateholders’ ' Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers Transferors shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusaloption. If they exercise such right of first refusaloption, the Sellers Transferors shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect affect that, in reliance on certain certificates to the effect that the Receivables constitute fair Transferors have received reasonably equivalent value for consideration paid therefor and as to the solvency of the SellersTransferors, the purchase would not be considered a fraudulent conveyance transfer and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a “Service Transfer”)Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder including, including without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds. The Servicer shall within 20 Business Days promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. Notwithstanding the foregoing, a any delay in or failure of performance referred to in paragraph (aunder Section 10.01(a) above for a period of 10 five Business Days after the applicable grace period or under paragraph Section 10.01(b) or (c) for a period of 60 days (in addition to any period provided in Section 10.01(a), (b) or (c)) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default until the expiration of such additional five Business Days or 60 days, respectively, if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its respective obligations in a timely manner in accordance with the terms of this Agreement and any Supplement and the Servicer shall provide the Trustee, the Sellerseach Rating Agency, any Series Enhancer entitled thereto pursuant to the relevant Supplement, the Holder of the Transferor Certificate and the Investor Certificateholders with an Officer’s 's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts to so to perform its obligations.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Providian Master Trust), Pooling and Servicing Agreement (Providian Master Trust)
Servicer Defaults. If any one of the following events (a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give notice or instructions or to give notice to the Indenture Trustee to make such any required payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice Servicer is required to be made or given, as the case may be, do so under the terms of this Agreement Agreement, the Indenture or any applicable Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Days; provided, however, that any such failure caused by a nonwillful act of the Servicer shall not constitute a Servicer Default if the Servicer promptly remedies such failure within 35 Business Days after receiving notice of such failure or otherwise becoming aware of such failure;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect an Adverse Effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) Noteholders and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by Holders of Investor Certificates Noteholders evidencing not less than 1050% of the aggregate unpaid principal amount of all Investor Certificates Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, 10Classes or Tranches of Notes, not less than 50% of the aggregate unpaid principal amount of all Series Series, Classes or Tranches of Notes to which such failure relatesrelated); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 7.2, 7.5 and 8.077.7;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement hereto shall prove to have been incorrect when made, which has a material adverse effect an Adverse Effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) Noteholders and which material adverse effect Adverse Effect continues for a period of 60 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Noteholders evidencing not less than 1050% of the aggregate unpaid principal amount of all Investor Certificates Notes (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10Classes or Tranches of Notes, not less than 50% of the aggregate unpaid principal amount of all Series to which Series, Classes or Tranches of Notes adversely affected by such representation, warranty or certification relatescertification); or;
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligationsobligations and such petition shall not have been dismissed within 60 days of the filing thereof; or
(e) any other Servicer Default described in any Indenture Supplement; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Noteholders evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificatesaffected Notes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee and any Series Enhancement if given by the Investor CertificateholdersNoteholders) (a “"Termination Notice”"), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereofAgreement; provided, however, if within 60 days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(csubsection 9.2(d) to act as a Successor Servicer and receives an Officer’s 's Certificate of the Sellers Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall shall, except in the case of a Servicer Default set forth in subsection 9.1(d), grant a the Transferor the right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest interest of the Noteholders on the Distribution First Note Transfer Date in the next calendar month. If the Transferor elects not to exercise such right of first refusal, the Indenture Trustee shall assume the role of Successor Servicer. The purchase price for the Certificateholders’ Interest interest of the Noteholders shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series Outstanding Series, Class or Tranche of Notes herein or in the related applicable Indenture Supplement. The Sellers Transferor shall notify the Indenture Trustee prior to the Record Date for the Distribution First Note Transfer Date of the purchase if they are the Transferor is exercising such right of first refusal. If they exercise the Transferor exercises such right of first refusal, the Sellers Transferor shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution First Note Transfer Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders the Noteholders in accordance with Article IV and the terms of each hereof or the applicable Indenture Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.029.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “"Service Transfer”); ") and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables Trust Assets provided for under this Agreement, including including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the ReceivablesTrust Assets, and in assisting the Successor Servicer. The Servicer shall within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables Trust Assets to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables Trust Assets in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 9.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing licensing, security, data protection and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Sellers, any Series Enhancer Owner Trustee and the Investor Certificateholders each Transferor with an Officer’s 's Certificate of the Servicer giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 2 contracts
Sources: Transfer and Servicing Agreement (American Express Issuance Trust), Transfer and Servicing Agreement (American Express Issuance Trust)
Servicer Defaults. If any one of the following events (each being a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or (including pursuant to Section 3.04(b)), or, if applicable, to give instructions or to give notice to the Trustee to make such payment, transfer or deposit on deposit, or before to give notice to the date occurring five Trustee as to any action to be taken under any Enhancement Agreement, or any failure to provide a Determination Date Certificate to the Trustee within two Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;same shall become due; or
(b) failure on the part of the Servicer duly shall fail to observe or perform in any material respect any other covenants covenant or agreements of the Servicer set forth in this Agreement or any Supplement agreement applicable to it contained herein which has a material adverse effect on the Investor Certificateholders of any Series (which determination Beneficiary if such failure shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues remain unremedied for a period of 60 days after the date on which notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (ten days; or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
(c) any representation, warranty or certification made by the Servicer under or in connection with this Agreement or any Supplement Agreement, or in any certificate or information delivered pursuant to or in connection with this Agreement or any Supplement Agreement, shall prove to have been incorrect in any respect when made, made and which has a material adverse effect on the rights of the Investor Certificateholders interests of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates)Beneficiary; or
(d) an Insolvency Event shall occur with respect to the Servicer; or
(e) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvencyassigns its duties under this Agreement, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally except as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligationsspecifically permitted by Section 8.02; then, in the event of any Servicer Default, so as long as the such Servicer Default shall not have been remediedremedied and is continuing, either Pooling and Servicing Agreement the TrusteeTrustee (unless otherwise directed by a Majority in Interest of each outstanding Series or, if so specified in the related Supplement, the Enhancement Provider for such Series) or the Holders Majority in Interest of Investor Certificates evidencing more than 50% of each Series (or, if so specified in the aggregate unpaid principal amount of all Investor Certificatesrelated Supplement, the Enhancement Provider for such Series), by notice then given in writing to the Servicer (and to the Trustee and any Series Enhancement if given by the such Investor Certificateholders) (each such being a “"Termination Notice”"), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and Agreement. The Trustee shall be deemed to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt have knowledge of a Termination Notice Servicer Default only if a Responsible Officer of the Trustee does has actual knowledge or if a Responsible Officer of the Trustee has received written notice thereof. Notwithstanding the foregoing, a delay in or failure of performance referred to in Section 10.01(a) or (b) for a period of five Business Days shall not receive any bids constitute a Servicer Default if such delay or failure could not have been prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods, union strikes, work stoppages or similar causes. The preceding sentence shall not relieve the Servicer from Eligible Servicers using its best efforts to perform its obligations in a timely manner in accordance with Section 10.02(c) to act as a Successor the terms of this Agreement, and the Servicer shall provide the Trustee, the Transferor, any Enhancement Provider and receives the Investor Certificateholders with an Officer’s 's Certificate giving prompt notice of the Sellers such failure or delay by it, together with a description of its efforts so to the effect that the Servicer cannot perform its obligations. A Majority in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right Interest of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series (or, if so specified in the related Supplement, the Enhancement Provider for such Series) may, on behalf of all Certificateholders, waive any default by the Servicer in the performance of its obligations hereunder and its consequences, except the failure to make any distributions or payments required to be made to Certificateholders or to make any required deposits of any amounts to be so distributed or paid. The Sellers No such waiver shall notify the Trustee prior extend to any subsequent or other default or impair any right consequent thereon except to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplementextent expressly so waived. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the such Successor Servicer (a “"Service Transfer”); ") and, without limitation, the Trustee is hereby authorized authorized, empowered and empowered instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate cooperate, at its expense, with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Pooling and Servicing Agreement Receivables as provided for under this Agreement, including all authority over all Collections which shall on the date of transfer such Service Transfer be held by the Servicer for depositdeposit to the Concentration Account, any ▇▇▇▇▇▇▇▇▇▇ Collection Account, the Trustee's Account or the Transferor's Account, or which have been deposited by the ServicerServicer to the Concentration Account, in the any ▇▇▇▇▇▇▇▇▇▇ Collection Account, or any other account, or which shall thereafter be received with respect to the Receivables, (ii) taking such measures as shall be reasonably requested by the Transferor to protect and maintain the security and confidentiality of all Confidential Information in accordance with Section 8.07 and (iii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting to make the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Servicer Transfer. The Servicer shall shall, at its expense, within 20 five Business Days transfer its electronic of such Service Transfer, (A) assemble such documents, instruments and other records relating to (including computer tapes and disks), which evidence the Receivables and the other Trust Assets, and which are necessary or desirable to collect the Receivables, and shall make the same available to the Successor Servicer or the Trustee or its designee at a place selected by the Successor Servicer or the Trustee and in such electronic form as the Successor Servicer or the Trustee may reasonably request request, and shall promptly transfer (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Receivables in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all other recordssuch cash, correspondence checks and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose instruments to the Successor Servicer information of or the Trustee or its designee. At any kind which time following a Termination Notice:
(1) the Servicer reasonably deems shall, at the Trustee's request and at the Servicer's expense, give notice of the Trust's ownership of the Receivables to the related Obligors and direct that payments be confidential, made directly to the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as Trustee or its designee;
(2) if the Servicer shall deem necessary fails to protect its interest. Notwithstanding provide the foregoing, a delay in or failure of performance referred notice to the Obligors required in paragraph (a1) above for a period above, the Trustee may direct the Obligors of 10 Business Days after Receivables, or any of them, that payment of all amounts payable under any such Receivables be made directly to the applicable grace period Trustee or under paragraph its designee; and
(b3) or (c) above for a period each of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by Transferor and each Certificateholder hereby authorizes the exercise Trustee to take any and all steps in the Transferor's name and on behalf of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement Transferor and the Servicer shall provide Certificateholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Receivables, including, without limitation, endorsing the Sellers, any Series Enhancer Transferor's name on checks and the Investor Certificateholders with an Officer’s Certificate giving prompt notice other instruments representing Collections in respect of such failure or delay by it, together with a description of its efforts so to perform its obligations.Receivables and enforcing such Receivables. Pooling and Servicing Agreement
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Muehlstein Holding Corp), Pooling and Servicing Agreement (Muehlstein Holding Corp)
Servicer Defaults. If any one of the following events (a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give notice or instructions or to give notice to the Indenture Trustee to make such any required payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice Servicer is required to be made or given, as the case may be, do so under the terms of this Agreement Agreement, the Indenture or any applicable Indenture Supplement, or within the applicable grace period, which will not exceed five (5) Business Days; provided, however, that any such failure caused by a nonwillful act of the Servicer shall not constitute a Servicer Default if the Servicer promptly remedies such failure within five (5) Business Days after receiving notice of such failure or otherwise becoming aware of such failure;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect an Adverse Effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) Noteholders and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by Holders of Investor Certificates Noteholders evidencing not less than 1050% of the aggregate unpaid principal amount Outstanding Dollar Principal Amount of all Investor Certificates the Outstanding Notes (or, with respect to any such failure that does not relate to all SeriesSeries and Classes of Notes, 10not less than 50% of the aggregate unpaid principal amount Outstanding Dollar Principal Amount of all Series and Classes of Notes to which such failure relatesrelated); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 Section 5.2, Section 5.5 and 8.07Section 5.7;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement hereto shall prove to have been incorrect when made, which has a material adverse effect an Adverse Effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) Noteholders and which material adverse effect Adverse Effect continues for a period of 60 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Noteholders evidencing not less than 1050% of the aggregate unpaid principal amount Outstanding Dollar Principal Amount of all Investor Certificates the Outstanding Notes (or, with respect to any such representation, warranty or certification that does not relate to all SeriesSeries and Classes of Notes, 10not less than 50% of the aggregate unpaid principal amount Outstanding Dollar Principal Amount of all Series to which and Classes of Notes adversely affected by such representation, warranty or certification relatescertification); or;
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-winding- up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statuteDebtor Relief Law, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligationsobligations and such petition shall not have been dismissed within 60 days of the filing thereof; or
(e) any other Servicer Default described in any Indenture Supplement; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Noteholders evidencing more than 50% of the aggregate unpaid principal amount Outstanding Dollar Principal Amount of all Investor CertificatesNotes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee and any Series Enhancement if given by the Investor CertificateholdersNoteholders) (a “Termination Notice”), may terminate all all, but not less than all all, of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereofAgreement; provided, however, if within 60 days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c6.2(d) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall grant a right assume the role of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each SupplementSuccessor Servicer. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.026.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “Service Transfer”); ) and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables Trust Assets provided for under this Agreement, including including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the ReceivablesTrust Assets, and in assisting the Successor Servicer. The Servicer shall within 20 Business Days of the date of transfer, transfer its electronic records or electronic copies thereof relating to the Receivables Trust Assets to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables Trust Assets in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 6.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing licensing, security, data protection and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of war, or terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Sellers, any Series Enhancer Owner Trustee and the Investor Certificateholders Transferor with an Officer’s Certificate of the Servicer giving prompt notice of such failure or delay by it, together with a description of its the efforts so undertaken to perform its obligations.
Appears in 2 contracts
Sources: Servicing Agreement (Dryrock Issuance Trust), Servicing Agreement (Dryrock Issuance Trust)
Servicer Defaults. If any one of the following events (a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Trustee to make such paymentany required drawing, transfer withdrawal, or deposit payment under any Credit Enhancement on or before the date occurring five ten Business Days after the date such payment, transfer transfer, deposit withdrawal or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any SupplementAgreement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 1050% of the aggregate unpaid principal amount Investor Interest of all any Series adversely affected thereby and continues to materially adversely affect such Investor Certificates Certificateholders for such period; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7;
(or, with respect to c) any such representation, warranty or certification that does made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has a material adverse effect an the Investor Certificateholders of any Series and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not relate to all Series, 10less than 50% of the aggregate unpaid principal amount Investor Interest of all any Series adversely affected thereby and continues to which materially adversely affect such representation, warranty or certification relates)Investor Certificateholders for such period; or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the aggregate unpaid principal amount of all Aggregate Investor CertificatesInterest, by notice then given in writing to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a “"Termination Notice”"), may terminate all but not less than all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each SupplementAgreement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a “Service Transfer”)Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder including, including without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account, the Principal Account, the Excess Funding Account and any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such each customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under the Credit Enhancement with respect to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (asubsection 10.1(a) above for a period of 10 Business Days after the applicable grace period or under paragraph (bin subsection 10.1(b) or (c) above for a period of 60 Business Days after the applicable grace periodDays, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Credit Enhancement Provider, the Sellers, any Series Enhancer Transferor and the Holders of Investor Certificateholders Certificates with an Officer’s 's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Chase Manhattan Bank Usa), Pooling and Servicing Agreement (Chase Credit Card Master Trust)
Servicer Defaults. If any one of the following events (a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Trustee to make such paymentany required drawing, transfer withdrawal, or deposit payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer transfer, deposit, withdrawal or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any SupplementAgreement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the TrusteeTrustee or the Transferor, or to the Servicer Servicer, the Transferor and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 1050% of the aggregate unpaid principal amount Investor Interest of all any Series adversely affected thereby and continues to materially adversely affect such Investor Certificates (or, with respect to any Certificateholders for such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates)period; or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and Section 8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues to be incorrect in any material adverse effect continues respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the TrusteeTrustee or the Transferor, or to the Servicer Servicer, the Transferor and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 1050% of the aggregate unpaid principal amount Investor Interest of all any Series adversely affected thereby and continues to materially adversely affect such Investor Certificates (or, with respect to any Certificateholders for such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates)period; or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up winding‑up or liquidation of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the aggregate unpaid principal amount of all Aggregate Investor CertificatesInterest, by notice then given in writing to the Servicer (and to the Trustee and any Series Enhancement the Transferor if given by the Investor Certificateholders) (a “Termination Notice”), may terminate all but not less than all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each SupplementAgreement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a “Service Transfer”)Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact attorney‑in‑fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder including, including without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account, the Principal Account, and any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds, Recoveries and Interchange (if any) applicable to the Trust. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under the Credit Enhancement with respect to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (asubsection 10.01(a) above for a period of 10 Business Days after the applicable grace period or under paragraph (bsubsection 10.01(b) or (c) above for a period of 60 Business Days after the applicable grace periodDays, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Credit Enhancement Provider, the Sellers, any Series Enhancer Transferor and the Holders of Investor Certificateholders Certificates with an Officer’s Certificate of the Servicer giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (BA Credit Card Trust), Pooling and Servicing Agreement (BA Master Credit Card Trust II)
Servicer Defaults. (a) If any one of the following events (a “"Servicer Default”") shall occur occurs and be continuingis continuing with respect to the Servicer:
(ai) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee to make such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement the Indenture or any Indenture Supplement;
(bii) failure on the part of the Servicer duly to observe or perform in any material respect any other of its covenants or agreements of the Servicer set forth in this Agreement or any Supplement which that has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) an Adverse Effect and which continues unremedied for a period of 60 days after the date on which notice of such failure, requiring the same to be remedied, shall have has been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by Holders of Investor Certificates Notes evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates Notes (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign delegates or delegate assigns its duties under this Agreement, except as permitted by Sections 8.02 3.01(a), 5.02 and 8.076.02;
(ciii) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove proves to have been incorrect when made, which made and such error has a material adverse effect an Adverse Effect on the rights of the Investor Certificateholders Noteholders of any Series (which determination shall will be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect such Adverse Effect continues for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have has been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates Notes (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates); or
(div) the Servicer shall consent consents to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been is entered against the Servicer and such decree or order shall have remained remains in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit admits in writing its inability to pay its debts generally as they become due, file files a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make makes any assignment for the benefit of its creditors or voluntarily suspend suspends payment of its obligations; then, in the event of any Servicer Default, so long as the Servicer Default shall has not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing more than 50% of the aggregate unpaid principal amount of all Investor CertificatesNotes, by notice then given to the Servicer and the Owner Trustee (and to the Indenture Trustee and any Series Enhancement if given by the Investor CertificateholdersNoteholders) (a “"Termination Notice”"), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereofAgreement; provided, however, that if within 60 days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c6.02(c) to act as a Successor Servicer and receives an Officer’s 's Certificate of the Sellers Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall will grant a right of first refusal to the Sellers which would permit Transferor permitting the Sellers Transferor at their its option to purchase acquire the Certificateholders’ Interest Noteholders' Collateral serviced by the Servicer on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall Noteholders' Collateral will be equal to the sum of the amounts specified therefor Reassignment Amounts with respect to each outstanding Series in the related Indenture Supplement. The Sellers shall Transferor will notify the Indenture Trustee prior to the Record Date (as defined in the Indenture) for the Distribution Date of the purchase acquisition if they are it is exercising such right of first refusal. If they exercise the Transferor exercises such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) Transferor will deposit the purchase price into the Collection Account not no later than 12:00 noon1:00 p.m., New York City time, on such Distribution Date in immediately available funds. The purchase price shall will be allocated and distributed to Investor Certificateholders the Noteholders on such Distribution Date in accordance with Article IV the Indenture and each Indenture Supplement in payment of their Notes and will result in a corresponding increase in the terms of each Supplement. Transferor Interest.
(b) After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.026.02, all authority and power of the Servicer under this Agreement shall will pass to and be vested in the Successor Servicer (a “Service "Servicing Transfer”"); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Servicing Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be that are held by the Servicer for depositdeposit on the date of transfer, or which that have been deposited by the Servicer, in the Collection Account, or which shall that thereafter be are received with respect to the Receivables, and in assisting the Successor Servicer. The Servicer shall will within 20 Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall will promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably requestrequests. To the extent that compliance with this Section shall require requires the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to will enter into such customary licensing and confidentiality agreements as the Servicer shall deem deems reasonably necessary to protect its interest. interests.
(c) Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph clause (ai) above of Section 6.01(a) for a period of 10 ten Business Days after the applicable grace period or under paragraph clause (bii) or (ciii) above of Section 6.01(a) for a period of 60 Business Days after the applicable grace period, shall will not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the a public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causescauses outside the reasonable control of the Servicer. The preceding sentence shall will not relieve the Servicer from using its best all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall will provide the Indenture Trustee, the SellersOwner Trustee, the Transferor and any Series Enhancer and the Investor Certificateholders with an Officer’s 's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 2 contracts
Sources: Transfer and Servicing Agreement (Ford Credit Floorplan LLC), Transfer and Servicing Agreement (Ford Credit Floorplan LLC)
Servicer Defaults. If The occurrence and continuation of any one of the following events shall constitute a servicer default (a “Servicer Default”) shall occur and be continuing:"SERVICER DEFAULT"):
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee to make such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;
(b) 4.1.1 failure on the part of the Servicer or any Co-Servicer duly to observe or perform in any material respect any other of the covenants or agreements of the Servicer or Co-Servicer set forth in this the Master Framework Agreement or any Supplement Relevant Document which has has, in the opinion of the Beneficiaries, a material adverse effect Material Adverse Effect on the interests of the Beneficiaries as a whole or of the Investor Certificateholders Beneficiaries of any Applicable Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer or, if applicable, any Co-Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less Beneficiaries representing in aggregate more than 10% one-half of the aggregate unpaid principal amount Investor Interests of all any Applicable Series adversely affected thereby (copied to the Receivables Trustee) and continues to have a Material Adverse Effect on the interests of an Investor Certificates (or, with respect to Beneficiary of any Applicable Series for such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or period;
4.1.2 delegation by the Servicer shall assign or delegate any Co-Servicer of its duties under this AgreementAgreement to any other entity, except as permitted by Sections 8.02 and 8.07Clause 3.6;
(c) 4.1.3 any relevant representation, warranty or certification made by the Servicer in this Agreement or any Supplement Co-Servicer in the Master Framework Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove hereto proves to have been incorrect when made, made and which has a material adverse effect Material Adverse Effect on the rights interests of the Investor Certificateholders Beneficiaries of any Applicable Series (which determination shall and continues to be made without regard to whether funds are then available pursuant to incorrect in any Series Enhancement) and which material adverse effect continues respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer or, if applicable, any Co-Servicer by the Trustee, an Investor Beneficiary or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less Beneficiaries representing in aggregate more than 10% one-half of the aggregate unpaid principal amount Investor Interests of all any Applicable Series affected thereby (copied to the Receivables Trustee) and continues to have a Material Adverse Effect on the interests of an Investor Certificates (or, with respect to Beneficiary of any Applicable Series affected for such representation, warranty period;
4.1.4 the Servicer or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates); or
(d) the any Co-Servicer shall consent to or take any corporate action relating to the appointment of a conservator or receiver or liquidator in any insolvencyreceiver, readjustment of debtadministrator, marshalling of assets and liabilities administrative receiver, liquidator, trustee or similar proceedings officer of or relating to the Servicer or of it or relating to all or substantially all of its property, or a decree or revenues and assets;
4.1.5 an order of a the court or agency or supervisory authority having jurisdiction in the premises is made for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up up, dissolution, administration or liquidation reorganisation (except for a solvent re-organisation) of its affairs, shall have been entered against the Servicer or any Co-Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; ;
4.1.6 a receiver, administrator, administrative receiver, liquidator, trustee or similar officer is legally and validly appointed over the Servicer or any Co-Servicer or relating to all of the Servicer or any Co-Servicer's revenues and assets;
4.1.7 a duly authorised officer of the Servicer or any Co-Servicer shall admit in writing its inability that the Servicer or such Co-Servicer is unable to pay its debts generally as they become due, file fall due within the meaning of Section 123(1) of the Insolvency Act 1986; or
4.1.8 the Servicer or such Co-Servicer makes a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment ge▇▇▇▇▇ ▇▇signment for the benefit of or a composition with its creditors or voluntarily suspend suspends payment of its obligations; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificates, by notice then given obligations with a view to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a “Termination Notice”), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “Service Transfer”); and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact general readjustment or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer. The Servicer shall within 20 Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, the Sellers, any Series Enhancer and the Investor Certificateholders with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description rescheduling of its efforts so to perform its obligationsindebtedness.
Appears in 2 contracts
Sources: Beneficiaries Servicing Agreement (Arran Funding LTD), Beneficiaries Servicing Agreement (Arran Funding LTD)
Servicer Defaults. If any one of the following events (a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee to make such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) an Adverse Effect and which continues unremedied for a period of 60 days after the date on which notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.073.1(a), 8.2, 8.5 or 8.7;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect an Adverse Effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect Adverse Effect continues for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates); or
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificates, by notice then given to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a “"Termination Notice”"), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereofAgreement; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(csubsection 10.2(c) to act as a Successor Servicer and receives an Officer’s 's Certificate of the Sellers Transferor to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers Transferor which would permit the Sellers Transferor at their its option to purchase the Certificateholders’ ' Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ ' Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers Transferor shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are it is exercising such right of first refusal. If they exercise the Transferor exercises such right of first refusal, the Sellers Transferor shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon1:00 P.M., New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “"Service Transfer”"); and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer. The Servicer shall within 20 Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, the Sellers, Transferor and any Series Enhancer and the Investor Certificateholders with an Officer’s 's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Credit Card Receivables Funding Corp), Pooling and Servicing Agreement (Partners First Receivables Funding Corp)
Servicer Defaults. If any one of the following events (a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give notice or instructions or to give notice to the Indenture Trustee to make such any required payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice Servicer is required to be made or given, as the case may be, do so under the terms of this Agreement Agreement, the Indenture or any applicable Indenture Supplement, or within the applicable grace period, which will not exceed five Business Days; provided, however, that any such failure caused by a nonwillful act of the Servicer shall not constitute a Servicer Default if the Servicer promptly remedies such failure within five Business Days after receiving notice of such failure or otherwise becoming aware of such failure;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect an Adverse Effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) Noteholders and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Issuer Trustee or the Indenture Trustee, or to the Servicer Servicer, the Issuer Trustee and the Indenture Trustee by Holders of Investor Certificates Noteholders evidencing not less than 1050% of the aggregate unpaid principal amount Outstanding Dollar Principal Amount of all Investor Certificates Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, 10Classes or Tranches of Notes, not less than 50% of the aggregate unpaid principal amount of all Series Series, Classes or Tranches of Notes to which such failure relatesrelated); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 5.2, 5.5 and 8.075.7;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement hereto shall prove to have been incorrect when made, which has a material adverse effect an Adverse Effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) Noteholders and which material adverse effect Adverse Effect continues for a period of 60 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Issuer Trustee or the Indenture Trustee, or to the Servicer Servicer, the Issuer Trustee and the Indenture Trustee by the Holders of Investor Certificates Noteholders evidencing not less than 1050% of the aggregate unpaid principal amount of all Investor Certificates Notes (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10Classes or Tranches of Notes, not less than 50% of the aggregate unpaid principal amount of all Series to which Series, Classes or Tranches of Notes adversely affected by such representation, warranty or certification relatescertification); or;
(d) the Servicer shall consent to the appointment of a conservator bankruptcy trustee or conservator, administrator, receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligationsobligations and such petition shall not have been dismissed within 60 days of the filing thereof; or
(e) any other Servicer Default described in any Indenture Supplement; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Noteholders evidencing more than 50% of the aggregate unpaid principal amount Outstanding Dollar Principal Amount of all Investor Certificatesaffected Notes, by notice then given in writing to the Servicer and the Issuer Trustee (and to the Indenture Trustee and any Series Enhancement if given by the Investor CertificateholdersNoteholders) (a “Termination Notice”), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each SupplementAgreement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.026.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “Service Transfer”); ) and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables Trust Assets provided for under this Agreement, including including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the ReceivablesTrust Assets, and in assisting the Successor Servicer. The Servicer shall within 20 Business Days of the date of transfer, transfer its electronic records or electronic copies thereof relating to the Receivables Trust Assets to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables Trust Assets in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 6.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing licensing, security, data protection and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 ten Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of or terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Sellers, any Series Enhancer Issuer Trustee and the Investor Certificateholders each Transferor with an Officer’s Certificate of the Servicer giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 1 contract
Sources: Servicing Agreement
Servicer Defaults. If any one of the following events (a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give notice or instructions or to give notice to the Indenture Trustee to make such any required payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice Servicer is required to be made or given, as the case may be, do so under the terms of this Agreement Agreement, the Indenture or any applicable Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Days; provided, however, that any such failure caused by a nonwillful act of the Servicer shall not constitute a Servicer Default if the Servicer promptly remedies such failure within 35 Business Days after receiving notice of such failure or otherwise becoming aware of such failure;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect an Adverse Effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) Noteholders and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by Holders of Investor Certificates Noteholders evidencing not less than 1050% of the aggregate unpaid principal amount of all Investor Certificates Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, 10Classes or Tranches of Notes, not less than 50% of the aggregate unpaid principal amount of all Series Series, Classes or Tranches of Notes to which such failure relatesrelated); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 7.2, 7.5 and 8.077.7;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement hereto shall prove to have been incorrect when made, which has a material adverse effect an Adverse Effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) Noteholders and which material adverse effect Adverse Effect continues for a period of 60 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Noteholders evidencing not less than 1050% of the aggregate unpaid principal amount of all Investor Certificates Notes (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10Classes or Tranches of Notes, not less than 50% of the aggregate unpaid principal amount of all Series to which Series, Classes or Tranches of Notes adversely affected by such representation, warranty or certification relatescertification); or;
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligationsobligations and such petition shall not have been dismissed within 60 days of the filing thereof; or
(e) any other Servicer Default described in any Indenture Supplement; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Noteholders evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificatesaffected Notes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee and any Series Enhancement if given by the Investor CertificateholdersNoteholders) (a “Termination Notice”), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereofAgreement; provided, however, if within 60 days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(csubsection 9.2(d) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall shall, except in the case of a Servicer Default set forth in subsection 9.1(d), grant a the Transferor the right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest interest of the Noteholders on the Distribution First Note Transfer Date in the next calendar month. If the Transferor elects not to exercise such right of first refusal, the Indenture Trustee shall assume the role of Successor Servicer. The purchase price for the Certificateholders’ Interest interest of the Noteholders shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series Outstanding Series, Class or Tranche of Notes herein or in the related applicable Indenture Supplement. The Sellers Transferor shall notify the Indenture Trustee prior to the Record Date for the Distribution First Note Transfer Date of the purchase if they are the Transferor is exercising such right of first refusal. If they exercise the Transferor exercises such right of first refusal, the Sellers Transferor shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution First Note Transfer Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders the Noteholders in accordance with Article IV and the terms of each hereof or the applicable Indenture Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.029.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “Service Transfer”); ) and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables Trust Assets provided for under this Agreement, including including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the ReceivablesTrust Assets, and in assisting the Successor Servicer. The Servicer shall within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables Trust Assets to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables Trust Assets in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 9.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing licensing, security, data protection and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Sellers, any Series Enhancer Owner Trustee and the Investor Certificateholders each Transferor with an Officer’s Certificate of the Servicer giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (American Express Issuance Trust)
Servicer Defaults. If any one of the following events (a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee to make such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement, any Supplement, the Affinity Card Agreement or any Supplement which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) Facilities Management Agreement and which continues unremedied for a period of 60 days after the date on which notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect an Adverse Effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues for a period of 60 10 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates); or
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificates, by notice then given to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a “"Termination Notice”"), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereofAgreement; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section subsection 10.02(c) to act as a Successor Servicer and receives an Officer’s 's Certificate of the Sellers Transferor to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers Transferor which would permit the Sellers Transferor at their its option to purchase the Certificateholders’ ' Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ ' Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers Transferor shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are it is exercising such right of first refusal. If they exercise the Transferor exercises such right of first refusal, the Sellers Transferor shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon11:00 a.m., New York City time, on the Transfer Date preceding such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “"Service Transfer”"); and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer. The Servicer shall within 20 Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, the Sellers, each Transferor and any Series Enhancer and the Investor Certificateholders with an Officer’s 's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 1 contract
Servicer Defaults. If any one of the following events (a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Trustee to make such paymentany required drawing, transfer withdrawal, or deposit payment under any Enhancement on or before the date occurring five Business Days after the date such payment, transfer transfer, deposit, withdrawal or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement Agreement; PROVIDED, HOWEVER, that any such failure caused by a non- willful act of the Servicer shall not constitute a Servicer Default if the Servicer promptly remedies such failure within five Business Days after receiving notice of such failure or any Supplementotherwise becoming aware of such failure;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agree- 113 119 ment, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 1050% of the aggregate unpaid principal amount Invested Amount of all any Series materially adversely affected thereby and continues to materially adversely affect such Investor Certificates Certificateholders for such period; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7;
(or, with respect to c) any such representation, warranty or certification that does made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has a material adverse effect on the Investor Certificateholders of any Series and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not relate to all Series, 10less than 50% of the aggregate unpaid principal amount Invested Amount of all any Series materially adversely affected thereby and continues to which materially adversely affect such representation, warranty or certification relates)Investor Certificateholders for such period; or
(d) the Servicer shall consent to the appointment of a conservator bankruptcy trustee or receiver or liquidator in any bankruptcy proceeding or any other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator bankruptcy trustee or receiver or liquidator in any bankruptcy proceeding or any other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they 114 120 become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the aggregate unpaid principal amount of all Investor CertificatesAggregate Invested Amount, by notice then given in writing to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a “"Termination Notice”"), may terminate all but not less than all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Agreement. The Servicer and agrees that promptly after it receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the such Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers Servicer will at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) its own expense deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) or to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency bailee of the SellersTrustee a computer file or microfiche list containing a true and complete list of all Accounts, identified by account number and setting forth the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms Outstanding Balance of each SupplementReceivable as of the date of receipt of such Termination Notice. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a “Service Transfer”)Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder including, including without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Excess Funding Account, the Interest Funding Account or the Principal Account, and any Series Account, or which shall thereafter be 115 121 received with respect to the Receivables, and in assisting the Successor Servicer. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under the Enhancement with respect to any Series to the Successor Servicer. In connection with any service transfer, all reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the records, correspondence and other documents with respect to the Receivables and the other Trust Property to the Successor Servicer and amending this Agreement to reflect such succession as Successor Servicer pursuant to this Section 10.1 and Section 10.2 shall be paid by the Servicer (unless the Trustee is acting as the Servicer on a temporary basis, in which case the original Servicer shall be responsible therefor) upon presentation of reasonable documentation of such costs and expenses. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (asubsection 10.1(a) above for a period of 10 five Business Days after the applicable grace period or under paragraph (bsubsection 10.1(b) or (c) above for a period of 60 Business Days after the applicable grace periodDays, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power outages, bank closings, communications outages, computer failure or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a 116 122 timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Enhancement Provider, the Sellers, any Series Enhancer Transferor and the Holders of Investor Certificateholders Certificates with an Officer’s 's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Federated Department Stores Inc /De/)
Servicer Defaults. If any one of the following events (a “"Servicer Default”") shall occur and be continuingcontinuing with respect to the Servicer:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee to make such payment, transfer or deposit or to give notice to the Trustee as to any action to be taken under any Enhancement Agreement on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;Agreement, which failure is not cured within five Business Days after notice of such failure from the Trustee to the Servicer.
(b) failure on the part of the Servicer duly to observe or perform its covenant not to create any Lien on any Receivable which failure has a material adverse effect on the Certificateholders and which continues unremedied for a period of sixty (60) days after written notice to it of such failure; provided, however, that a "Servicer Default" shall not be deemed to have occurred if the Seller or the Servicer shall have repurchased the related Receivables or, if applicable, all of the Receivables during such period in accordance with the provisions of this Agreement;
(c) failure on the part of the Servicer duly to observe or perform any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement (other than with respect to those specified in clause (b) above and with respect to clauses (viii), (ix) and (ix) under Section 3.3(a) hereof, to the extent the terms of Section 3.3(c) hereof have been complied with) which failure has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
(cd) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues for a period of 60 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee; provided, however, that a "Servicer Default" shall not be deemed to have occurred if the Seller or to the Servicer and shall have repurchased the Trustee by the Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (related Receivables or, if applicable, all of such Receivables during such period in accordance with respect to any such representation, warranty or certification that does not relate to all Series, 10% the provisions of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates); orthis Agreement;
(de) the Servicer shall consent to the appointment of a conservator or receiver or liquidator or other similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator or other similar official in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 sixty days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificates, by notice then given in writing to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a “"Termination Notice”"), may terminate all but not less than all of the rights and obligations (other than its obligations that have accrued up to the time of such termination) of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a “"Service Transfer”); ") and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-in- fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer; provided that in no event shall the Servicer incur any liability for any such action by the Trustee. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer. The Servicer shall within 20 Business Days promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (aunder Section 10.1(a) above for a period of 10 Business Days after the applicable grace period or under paragraph Section 10.1(b), (bc) or (cd) above for a period of 60 Business Days after the applicable grace periodDays, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement Agreement, and the Servicer shall provide the Trustee, the Sellersany Agents, any Series Enhancer Enhancement Providers, the Seller and the Investor Certificateholders with an Officer’s Officers' Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations. The Servicer shall immediately notify the Trustee in writing of any Servicer Default.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Deutsche Floorplan Receivables L P)
Servicer Defaults. If any one of the following events (a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct Trustee to make such paymentany required drawing, transfer withdrawal, or deposit payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer transfer, deposit withdrawal or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any SupplementAgreement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agreement, which has a material adverse effect on the Investor Certificateholders Holders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, specifying such notice to be a notice of Servicer Default hereunder, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 1025% of the aggregate unpaid principal amount Investor Interest of all any Series adversely affected thereby and continue to materially adversely affect such Investor Certificates (or, with respect to any Holders for such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates)period; or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07Section 8.7;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders Holders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues to be incorrect in any material adverse effect continues respect for a period of 60 days after the date on which written notice thereofof such failure, specifying such notice to be a notice of Servicer Default hereunder, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 1025% of the aggregate unpaid principal amount Investor Interest of all any Series adversely affected thereby and continues to materially adversely affect such Investor Certificates (or, with respect to any Holders for such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates)period; or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation liquidating of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the such Servicer Default shall not have been remediedremedied or waived, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the aggregate unpaid principal amount of all Aggregate Investor CertificatesInterest, by notice then given in writing to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor CertificateholdersHolders) (a “"Termination Notice”"), may terminate all but not less than all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each SupplementAgreement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a “Service Transfer”)Servicer; and, without limitation, the and Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes purpose of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account, the Excess Funding Account, the Distribution Account, and any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, the Sellers, any Series Enhancer and the Investor Certificateholders with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.the
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First National Bank of Commerce)
Servicer Defaults. If any one of the following events (a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee to make such paymentpayments, transfer transfers or deposit on or before the date occurring deposits within five Business Days after the date such payment, transfer or deposit or such instruction or notice the Servicer is required to be made or given, as the case may bedo so, under the terms of this Agreement or any Supplement;
(b) failure on the part of the Servicer to duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the interests hereunder of the Investor Certificateholders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 1050% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 1050% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 8.2 and 8.078.7, a Responsible Officer of the Trustee has actual knowledge of such delegation and such delegation continues unremedied for 15 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 50% of the aggregate unpaid principal amount of all Investor Certificates;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues to be incorrect in any material adverse effect continues respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less than 1050% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 1050% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates); or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its propertyfail generally to, or admit in writing its inability to, pay its debts as they become due; or a decree or order of proceeding shall have been instituted in a court or agency or supervisory authority having jurisdiction in the premises seeking a decree or order for relief in respect of the Servicer in an involuntary case under any Debtor Relief Law, or for the appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or receiver other similar official of such Person or liquidator in for any insolvency, readjustment substantial part of debt, marshalling of assets and liabilities or similar proceedingsits property, or for the winding-up or liquidation of its affairsaffairs and, shall have been entered if instituted against the Servicer and Servicer, any such decree or order proceeding shall have remained in force undischarged continue undismissed or unstayed and in effect, for a period of 60 consecutive days, or any of the actions sought in such proceeding shall occur; or the Servicer shall admit commencement by the Servicer, of a voluntary case under any Debtor Relief Law, or such Person's consent to the entry of an order for relief in writing an involuntary case under any Debtor Relief Law, or consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or other similar official of such Person or for any substantial part of its inability to pay its debts generally as they become dueproperty, file a petition to take advantage of or any applicable insolvency or reorganization statute, make any general assignment for the benefit of its creditors creditors; or voluntarily suspend payment such Person or any Subsidiary of its obligationssuch Person shall have taken any corporate action in furtherance of any of the foregoing actions; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, Trustee or the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificates, by notice then given to the Servicer (and to the Trustee and any Series Enhancement Provider entitled thereto pursuant to the relevant Supplement if given by the Investor Certificateholders) (a “"Termination Notice”"), may terminate all but not less than all the rights and obligations of the Servicer Servicer, as Servicer Servicer, under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive is unable to obtain any bids from Eligible Servicers in accordance with Section 10.02(c10.2(c) to act as a Successor Servicer and receives an Officer’s 's Certificate of the Sellers Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a offer the Transferor the right of first refusal to the Sellers which would permit the Sellers at their its option to purchase the Certificateholders’ ' Interest and the interest in the Trust Assets represented by any Participation on the Distribution Date occurring in the next calendar month. The purchase price for the Certificateholders’ ' Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers Transferor shall notify the Trustee prior to the Record Date for the related Distribution Date of the purchase if they are it is exercising such right of first refusaloption. If they exercise it exercises such right of first refusaloption, the Sellers Transferor shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the SellersTransferor, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon11:00 a.m., New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “"Service Transfer”"); and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such the Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including the transfer to such the Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds. The Servicer shall within 20 Business Days promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary appropriate to protect its interestinterests. Notwithstanding the foregoing, a any delay in or failure of performance referred to in paragraph (aunder Section 10.1(a) above for a period of 10 five Business Days after the applicable grace period or under paragraph Section 10.1(b) or (c) for a period of 60 days (in addition to any period provided in Section 10.1(a), (b) or (c)) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default until the expiration of such additional five Business Days or 60 days, respectively, if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using the obligation to use its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and any Supplement, and the Servicer shall provide the Trustee, the Sellerseach Rating Agency, any Series Enhancer Enhancement Provider entitled thereto pursuant to the relevant Supplement, the Holder of the Exchangeable Transferor Certificate and the Investor Certificateholders with an Officer’s 's Certificate giving prompt immediate notice of such failure or delay by it, together with a description of its efforts to so to perform its obligations. In the event the Trustee incurs expenses or renders services in any proceeding which result from the occurrence or continuance of a Servicer Default described in Section 10.1(d), or from the occurrence of any event which, by virtue of the passage of time, would become such a Servicer Default, the expenses so incurred and compensation for services so rendered are intended to constitute expenses of administration under any applicable bankruptcy, conservatorship or receivership code or statute or equivalent law.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Pier 1 Imports Inc/De)
Servicer Defaults. If any one of the following events ----------------- (a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to make such payment, transfer the terms of this Agreement or deposit any Supplement on or before the date date, occurring five ten Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the interests hereunder of the Investor Certificateholders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 33% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 33% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall delegate its duties under this Agreement except as permitted by Section 8.02 and 8.07, a Responsible officer,of the Trustee as actual knowledge of such delegation and such delegation continues unremedied for 15 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07Certificates;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect in any material respect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues to be incorrect in any material adverse effect continues respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates Certificates, evidencing not less than 1033% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 1033% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates); or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-winding up or liquidation of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 90 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificatesoutstanding Series, by written notice then given to the Servicer (and to the Trustee and any Series Enhancement Enhancer entitled thereto pursuant to the relevant Supplement if given by the Investor Certificateholders) (a “"Termination Notice”"), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, that if within 60 days of receipt of a -------- ------- Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s 's Certificate of the Sellers Servicer or the Depositor, to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers Depositor which would permit the Sellers at their option Depositor to purchase the Certificateholders’ Certificateholders Interest on the Distribution Date in the next calendar month. The Trustee shall first solicit bids from unaffiliated third parties and, if at least two bids are obtained, the Trustee will offer the right of first refusal to the Depositor at a purchase price for equal to the Certificateholders’ Interest shall be higher of such bids so long as such purchase price is at least equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. If the Depositor does not exercise its right of first refusal, the Trustee may sell the Certificateholders' Interest to the highest bidder, so long as the purchase price is at least equal to the amount described in the preceding sentence. The Sellers Depositor shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are it is exercising such right of first refusalright. If they exercise it exercises such right of first refusalright, the Sellers Depositor shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, noon New York City time, on the Transfer Date immediately preceding such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a “"Service Transfer”); ") and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds. The Servicer shall within 20 Business Days promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at as such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.01 shall require the Servicer to disclose to the Successor Servicer information Information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem been necessary to protect its interestinterests. Notwithstanding the foregoing, a any delay in or failure of performance referred to in paragraph (aunder Section 10.01(a) above for a period of 10 five Business Days after the applicable grace period or under paragraph Section 10.01(b) or (c) or a period of 90 days (in addition to any period provided in Section 10.01(a), (b) or (c)) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default until the expiration of such additional five Business Days or 90 days, respectively, if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its respective obligations in a timely manner in accordance with the terms of this Agreement and any Supplement and the Servicer shall provide the Trustee, the Sellerseach Rating Agency, any Series Enhancer entitled thereto pursuant to the relevant Supplement, each Holder of the Depositor's Certificate and the Investor Certificateholders with an Officer’s 's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts efforts, to so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Asset Backed Securities Corp)
Servicer Defaults. If any one of the following events (a “"Servicer Default”") shall occur and be continuing:
: (a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee to make such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;
; (b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) an Adverse Effect and which continues unremedied for a period of 60 days after the date on which notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates Securities evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates Securities (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
3.1(a), 8.2, 8.5 or 8.7; (c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect an Adverse Effect on the rights of the Investor Certificateholders Securityholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect Adverse Effect continues for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates Securities evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates Securities (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates); or
or (d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates Securities evidencing more than 50% of the aggregate unpaid principal amount of all Investor CertificatesSecurities, by notice then given to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor CertificateholdersSecurityholders) (a “"Termination Notice”"), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereofAgreement; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(csubsection 10.2(c) to act as a Successor Servicer and receives an Officer’s 's Certificate of the Sellers Transferor to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers Transferor which would permit the Sellers Transferor at their its option to purchase the Certificateholders’ Securityholders' Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Securityholders' Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers Transferor shall notify the Trustee and the Rating Agency prior to the Record Date for the Distribution Date of the purchase if they are it is exercising such right of first refusal. If they exercise the Transferor exercises such right of first refusal, the Sellers Transferor shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon1:00 P.M., New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders Securityholders in accordance with Article IV and the terms of each Supplement. The Transferor shall provide notice to the Rating Agency of the exercise by it of such right of first refusal. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “"Service Transfer”"); and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer. The Servicer shall within 20 Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its reasonable best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, the Sellers, Transferor and any Series Enhancer and the Investor Certificateholders with an Officer’s 's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Partners First Receivables Funding Corp)
Servicer Defaults. If The occurrence of any one or more of ----------------- the following events (shall constitute a “Servicer Default”) shall occur and be continuing:
(a) any failure by the The Servicer shall fail to make any payment, transfer payment or deposit or to give instructions or to give notice to the Trustee to make such payment, transfer or deposit required hereunder on or before within one Business Day after the date occurring when required to be made.
(b) The Servicer shall fail to perform or observe any term, covenant or agreement under Article VI or Section 11.6, which failure remains ---------- ------------ unremedied for five Business Days after notice from the date Agent, and such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;failure shall have a Material Adverse Effect.
(bi) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); The Seller or the Servicer shall assign generally not pay its debts as such debts become due or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates); or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file or shall make a petition to take advantage of any applicable insolvency or reorganization statute, make any general assignment for the benefit of creditors; (ii) any proceeding shall be instituted by the Seller or the Servicer seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its creditors debts under any law relating to bankruptcy, insolvency or voluntarily suspend payment reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or any substantial part of its obligationsproperty (each of the foregoing proceedings being hereinafter referred to as an "INSOLVENCY PROCEEDING"); then, (iii) any Insolvency Proceeding shall be instituted against the Seller and either (A) shall result in the event entry of any Servicer Default, so long as an order for relief against the Servicer Default shall not have been remedied, either the TrusteeSeller, or the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificates(B) shall continue undischarged, by notice then given to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a “Termination Notice”), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “Service Transfer”); and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact undismissed or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer. The Servicer shall within 20 Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above unstayed for a period of 60 Business Days after consecutive days; or (iv) the applicable grace period, shall not constitute a Servicer Default if such delay Seller or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide take any corporate action to authorize any of the Trustee, the Sellers, any Series Enhancer and the Investor Certificateholders with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligationsactions set forth in clauses (i)-(iii) above in this subsection (c).
Appears in 1 contract
Servicer Defaults. If any one of the following events (each being a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or (including pursuant to Section 3.04(b)), or, if applicable, to give instructions or to give notice to the Trustee to make such payment, transfer or deposit on deposit, or before to give notice to the date occurring five Trustee as to any action to be taken under any Enhancement Agreement, or any failure to provide the Determination Date Certificate to the Trustee, which failure continues unremedied (A) in the case of payments for two Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as and (B) in the case may beof the Determination Date Certificate, under the terms of this Agreement or any Supplement;for three Business Days; or
(b) any failure on the part of by the Servicer duly to observe or perform in any material respect any other covenants covenant or agreements agreement of the Servicer set forth in this Agreement or any Supplement Agreement, which failure has a material adverse effect on the Investor interests of the Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period 20 days (or, with respect to any covenant contained in Sections 3.04(a), 3.04(h) and 3.04(i), continues unremedied for five days) after the earlier of 60 days after (i) the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the TrusteeTrustee or any Enhancement Provider and (ii) the date on which written notice of such failure, or requiring the same to be remedied, shall have been given to the Servicer and the Trustee by Holders Certificate- holders of Investor Certificates any outstanding Series evidencing not less than 1020% of the aggregate unpaid principal amount of all Investor Certificates (Invested Amount for such Series; or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
(c) any representation, warranty or certification made by the Servicer under or in connection with this Agreement or any Supplement Agreement, or in any certificate or information delivered pursuant to or in connection with this Agreement or any Supplement Agreement, shall prove to have been incorrect in any respect when made, made and which has a material adverse effect on the rights interests of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues for a period of 60 20 days (or, with respect to any representation and warranty made in Sections 3.03(g), continues for five days) after the earlier of (i) the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the TrusteeTrustee or any Enhancement Provider and (ii) the date on which written notice of such failure, or requiring the same to be remedied, shall have been given to the Servicer and the Trustee by the Holders Certificate-holders of Investor Certificates any outstanding Series evidencing not less than 1020% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any Invested Amount for such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates); or
(d) the Servicer an Insolvency Event shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificates, by notice then given to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a “Termination Notice”), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “Service Transfer”); and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received occur with respect to the Receivables, and in assisting the Successor Servicer. The Servicer shall within 20 Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, the Sellers, any Series Enhancer and the Investor Certificateholders with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.; or
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Dell Computer Corp)
Servicer Defaults. If any one of the following events (a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to make such payment, transfer the terms of this Agreement or deposit any Supplement on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the interests hereunder of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) or Class and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less more than 1050% of the aggregate unpaid principal amount of all Aggregate Investor Certificates Amount (or, with respect to any such failure that does not relate to all Series, 1050% of the aggregate unpaid principal amount Investor Amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections Section 8.02 or 8.07, a Responsible Officer of the Trustee has actual knowledge of such delegation and 8.07such delegation continues unremedied for 15 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing more than 50% of the Aggregate Investor Amount;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) or Class and which continues to be incorrect in any material adverse effect continues respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less more than 1050% of the aggregate unpaid principal amount of all Aggregate Investor Certificates Amount (or, with respect to any such representation, warranty or certification that does not relate to all Series, 1050% of the aggregate unpaid principal amount Investor Amount of all Series to which such representation, warranty or certification relates); or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, Trustee or the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Aggregate Investor CertificatesAmount, by notice then given to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a “"Termination Notice”"), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; providedPROVIDED, howeverHOWEVER, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section subsection 10.02(c) to act as a Successor Servicer and receives an Officer’s 's Certificate of the Sellers Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a offer the Transferor the right of first refusal to the Sellers which would permit the Sellers at their its option to purchase the Certificateholders’ ' Interest on the Distribution Date in next succeeding 60 days after the next calendar monthreceipt by the Servicer of a Termination Notice. The purchase price for the Certificateholders’ ' Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers Transferor shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are it is exercising such right of first refusaloption. If they exercise the Transferor exercises such right of first refusaloption, the Sellers Transferor shall (x) if the Transferor's short-term deposits or long-term unsecured debt obligations are not rated at the time at least P-3 or Baa3, respectively, by Moody's, deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the SellersTransferor, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a “Service Transfer”)Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder including, including without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds. The Servicer shall within 20 Business Days promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. Notwithstanding the foregoing, a any delay in or failure of performance referred to in paragraph (aunder subsection 10.01(a) above for a period of 10 5 Business Days after the applicable grace period or under paragraph subsections 10.01(b) or (c) for a period of 60 days (in addition to any period provided in subsections 10.01(a), (b) or (c)) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default until the expiration of such additional 5 Business Days or 60 days, respectively, if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of war, terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its respective obligations in a timely manner in accordance with the terms of this Agreement and any Supplement and the Servicer shall provide the Trustee, each Rating Agency, the Sellers, any Series Enhancer Holders of the Transferor Certificates and the Investor Certificateholders with an Officer’s 's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts to so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Travelers Bank Credit Card Master Trust I)
Servicer Defaults. If any one of the following events (a “Servicer Default”"SERVICER DEFAULT") shall occur and be continuingcontinuing after the Certificate Trust Termination Date:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee to make such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit transfer, deposit, or such instruction or notice is required to be made or givengiven by Servicer, as the case may be, under the terms of this Agreement Agreement, the Indenture or any Indenture Supplement;; or
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Investor Certificateholders Noteholders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and ), which continues unremedied for a period of 60 days after the date on which written notice of such failurefailure requiring the same to be remedied shall have been given to Servicer by Indenture Trustee, or to Servicer and Indenture Trustee by the Noteholders holding not less than 25% of the Outstanding Amount (or, with respect to any failure that does not relate to all Series, 25% of the aggregate outstanding principal amount of all Series to which such failure relates); or Servicer shall delegate its duties under this Agreement except as permitted by SECTION 5.2 or 5.7, a Responsible Officer of Indenture Trustee has actual knowledge of such delegation and such delegation continues unremedied for 15 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee, or to the Servicer and the Indenture Trustee by Holders of Investor Certificates evidencing Noteholders holding not less than 1025% of the aggregate unpaid principal amount of all Investor Certificates (Outstanding Amount; or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders Noteholders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues to be incorrect in any material adverse effect continues respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee, or to the Servicer and the Indenture Trustee by the Holders of Investor Certificates evidencing Noteholders holding not less than 1025% of the aggregate unpaid principal amount of all Investor Certificates Outstanding Amount (or, with respect to any such representation, warranty or certification that does not relate to all Series, 1025% of the aggregate unpaid outstanding principal amount of all Series to which such representation, warranty or certification relates); or;
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its propertyfail generally to, or admit in writing its inability to, pay its debts as they become due; or a decree or order of proceeding shall have been instituted in a court or agency or supervisory authority having jurisdiction in the premises seeking a decree or order for relief in respect of Servicer in an involuntary case under any Debtor Relief Law, or for the appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or receiver other similar official of such Person or liquidator in for any insolvency, readjustment substantial part of debt, marshalling of assets and liabilities or similar proceedingsits property, or for the winding-up or liquidation of its affairsaffairs and, if instituted against Servicer, any such proceeding shall have been entered against the Servicer and such decree or order shall have remained in force undischarged continue undismissed or unstayed and in effect, for a period of 60 consecutive days, or any of the actions sought in such proceeding shall occur; or the Servicer shall admit commencement by Servicer, of a voluntary case under any Debtor Relief Law, or such Person's consent to the entry of an order for relief in writing an involuntary case under any Debtor Relief Law, or consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or other similar official of such Person or for any substantial part of its inability to pay its debts generally as they become dueproperty, file a petition to take advantage of or any applicable insolvency or reorganization statute, make any general assignment for the benefit of its creditors creditors; or voluntarily suspend payment such Person or any Subsidiary of its obligationssuch Person shall have taken any corporate action in furtherance of any of the foregoing actions; or
(e) with respect to any Series, any other event specified in the Indenture Supplement for such Series, then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates evidencing Noteholders holding more than 50% of the aggregate unpaid principal amount of all Investor CertificatesOutstanding Amount, by notice then given to the Servicer (and to the Indenture Trustee and any Series Enhancement Provider entitled thereto pursuant to the relevant Indenture Supplement if given by the Investor CertificateholdersNoteholders) (a “Termination Notice”"TERMINATION NOTICE"), may terminate all but not less than all the rights and obligations of the Servicer Servicer, as Servicer Servicer, under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Indenture Trustee pursuant to Section 10.02SECTION 7.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “Service Transfer”"SERVICE TRANSFER"); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperate with the Indenture Trustee and such the Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including the transfer to such the Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds. The Servicer shall within 20 Business Days promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section SECTION 7.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary appropriate to protect its interestinterests. Notwithstanding the foregoing, a any delay in or failure of performance referred to in paragraph (aunder SECTION 7.1(a) above for a period of 10 five Business Days after the applicable grace period or under paragraph SECTION 7.1(b) or (c) for a period of 60 days (in addition to any period provided in SECTION 7.1(a), (b) or (c)) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default until the expiration of such additional five Business Days or 60 days, respectively, if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using the obligation to use its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Sellerseach Rating Agency, any Series Enhancer Enhancement Provider entitled thereto pursuant to the relevant Indenture Supplement and the Investor Certificateholders Transferor with an Officer’s 's Certificate giving prompt immediate notice of such failure or delay by it, together with a description of its efforts to so to perform its obligations.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (World Financial Network Credit Card Master Trust)
Servicer Defaults. If any one of the following events (a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee to make such payment, transfer or deposit on or before the date occurring five (5) Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement Agreement, the Indenture or any Indenture Supplement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement, the Indenture, any Indenture Supplement, the Affinity Card Agreement or any Supplement which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) Facilities Management Agreement and which continues unremedied for a period of 60 sixty (60) days after the date on which notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by Holders of Investor Certificates Notes evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates Notes Outstanding (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Notes Outstanding of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 6.02 and 8.076.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) an Adverse Effect and which material adverse effect Adverse Effect continues for a period of 60 sixty (60) days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates Notes Outstanding (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Notes Outstanding of all Series to which such representation, warranty or certification relates); or
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings Proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or an action seeking a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedingsProceedings, or the winding-up or liquidation of its affairs, shall have been entered commenced against the Servicer and such decree or order action shall have remained in force undischarged or unstayed for a period of 60 dayssixty (60) days or an order or decree providing for such relief shall have been entered; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing more than 50% a majority of the aggregate unpaid principal amount of all Investor CertificatesNotes Outstanding, by notice then given to the Servicer and the Owner Trustee (and to the Indenture Trustee and any Series Enhancement if given by the Investor CertificateholdersNoteholders) (a “"Termination Notice”"), may terminate all but not less than all of the rights and obligations of the Servicer as Servicer under this Agreement Agreement, the Indenture and in and to the Receivables and the proceeds thereofeach Indenture Supplement; provided, however, if within 60 sixty (60) days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c8.02(c) to act as a Successor Servicer and receives an Officer’s 's Certificate of the Sellers Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall grant a right of first refusal to the Sellers Transferor which would permit the Sellers Transferor at their its option to purchase the Certificateholders’ Interest Notes on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest Notes purchased pursuant to the preceding paragraph shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Indenture Supplement. The Sellers Transferor shall notify the Indenture Trustee prior to the Record Date for the Distribution Date of the purchase if they are it is exercising such right of first refusal. If they exercise the Transferor exercises such right of first refusal, the Sellers Transferor shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon11:00 a.m., New York City time, on the Transfer Date preceding such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders Noteholders in accordance with Article IV and the terms of the Indenture and each Indenture Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.028.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “"Service Transfer”"); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer. The Servicer shall within 20 twenty (20) Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. The predecessor Servicer shall be responsible for all expenses incurred in transferring the servicing duties to the Successor Servicer. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 ten (10) Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 sixty (60) Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the SellersIssuer, each Transferor and any Series Enhancer and the Investor Certificateholders with an Officer’s 's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (Compucredit Corp)
Servicer Defaults. If any one of the following events (each being a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or (including pursuant to Section 3.04(b)), or, if applicable, to give instructions or to give notice to the Trustee to make such payment, transfer or deposit on deposit, or before to give notice to the date occurring five Trustee as to any action to be taken under any Enhancement Agreement, or any failure to provide a Determination Date Certificate to the Trustee, in each case, within two Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;same shall become due; or
(b) failure on the part of the Servicer duly shall fail to observe or perform in any material respect any other covenants covenant or agreements of the Servicer set forth in this Agreement or any Supplement agreement applicable to it contained herein which has a material adverse effect on the Investor Certificateholders of any Series (which determination Beneficiary if such failure shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues remain unremedied for a period of 60 ten days after the first date on which notice any Responsible Official of the Servicer knew or should have known of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (; or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
(c) any representation, warranty or certification made or deemed made by the Servicer under or in connection with this Agreement or any Supplement Agreement, or in any certificate or information delivered pursuant to or in connection with this Agreement or any Supplement Agreement, shall prove to have been incorrect when made, which has a in any material adverse effect respect on the rights or as of the Investor Certificateholders of any Series (which determination shall be date made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates)deemed made; or
(d) an Insolvency Event shall occur with respect to the Servicer; or
(e) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvencyassigns its duties under this Agreement, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 daysexcept as specifically permitted by Section 8.02; or the or
(f) The Servicer shall admit in writing its inability at any time fail to pay its debts generally as they become due, file a petition to take advantage have Consolidated Tangible Net Worth of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligationsat least $1,000,000; then, in the event of any Servicer Default, so as long as the such Servicer Default shall not have been remediedremedied and is continuing, either the TrusteeTrustee (unless otherwise directed by a Majority in Interest of each outstanding Series or, if so specified in the related Supplement, the Enhancement Provider for such Series) or the Holders Majority in Interest of Investor Certificates evidencing more than 50% of each Series (or, if so specified in the aggregate unpaid principal amount of all Investor Certificatesrelated Supplement, the Enhancement Provider for such Series), by notice then given in writing to the Servicer (and to the Trustee and any Series Enhancement if given by the such Investor Certificateholders) (each such being a “"Termination Notice”"), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and Agreement. The Trustee shall be deemed to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt have knowledge of a Termination Notice Servicer Default only if a Responsible Official of the Trustee does has actual knowledge or if a Responsible Official of the Trustee has received written notice thereof. Notwithstanding the foregoing, a delay in or failure of performance referred to in Section 10.01(a) or (b) for a period of five Business Days shall not receive any bids constitute a Servicer Default if such delay or failure could not have been prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods, union strikes, work stoppages or similar causes. The preceding sentence shall not relieve the Servicer from Eligible Servicers using its best efforts to perform its obligations in a timely manner in accordance with Section 10.02(c) to act as a Successor the terms of this Agreement, and the Servicer shall provide the Trustee, the Transferor, any Enhancement Provider and receives the Investor Certificateholders with an Officer’s 's Certificate giving prompt notice of the Sellers such failure or delay by it, together with a description of its efforts so to the effect that the Servicer cannot perform its obligations. A Majority in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right Interest of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series (or, if so specified in the related Supplement, the Enhancement Provider for such Series) may, on behalf of all Holders, waive any default by the Servicer in the performance of its obligations hereunder and its consequences, except the failure to make any distributions or payments required to be made to Holders or to make any required deposits of any amounts to be so distributed or paid. The Sellers No such waiver shall notify the Trustee prior extend to any subsequent or other default or impair any right consequent thereon except to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplementextent expressly so waived. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the such Successor Servicer (a “"Service Transfer”); ") and, without limitation, the Trustee is hereby authorized authorized, empowered and empowered instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate cooperate, at its expense, with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables as provided for under this Agreement, including all authority over all Collections which shall on the date of transfer such Service Transfer be held by the Servicer for depositdeposit to the Concentration Account, any Collection Account, the Trustee's Account or the Transferor's Account, or which have been deposited by the ServicerServicer to the Concentration Account, in the any Collection Account, or any other account, or which shall thereafter be received with respect to the Receivables, (ii) taking such measures as shall be reasonably requested by the Transferor to protect and maintain the security and confidentiality of all Confidential Information in accordance with Section 8.07 and (iii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting to make the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Servicer Transfer. The Servicer shall shall, at its expense, within 20 five Business Days transfer its electronic of such Service Transfer, (A) assemble such documents, instruments and other records relating to (including computer tapes and disks), which evidence the Receivables and the other Trust Assets, and which are necessary or desirable to collect the Receivables, and shall make the same available to the Successor Servicer or the Trustee or its designee at a place selected by the Successor Servicer or the Trustee and in such electronic form as the Successor Servicer or the Trustee may reasonably request request, and shall promptly transfer (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Receivables in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all other recordssuch cash, correspondence checks and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose instruments to the Successor Servicer information of or the Trustee or its designee. At any kind which time following a Termination Notice:
(1) the Servicer reasonably deems shall, at the Trustee's request and at the Servicer's expense, give notice of the Trust's interest in the Receivables to the related Obligors and direct that payments be confidential, made directly to the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as Trustee or its designee;
(2) if the Servicer shall deem necessary fails to protect its interest. Notwithstanding provide the foregoing, a delay in or failure of performance referred notice to the Obligors required in paragraph (a1) above for a period above, the Trustee may direct the Obligors of 10 Business Days after Receivables, or any of them, that payment of all amounts payable under any such Receivables be made directly to the applicable grace period Trustee or under paragraph its designee; and
(b3) or (c) above for a period each of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by Transferor and each Holder hereby authorizes the exercise Trustee to take any and all steps in the Transferor's name and on behalf of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement Transferor and the Servicer shall provide Holders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Receivables, including endorsing the Sellers, any Series Enhancer Transferor's name on checks and the Investor Certificateholders with an Officer’s Certificate giving prompt notice other instruments representing Collections in respect of such failure or delay by it, together with a description of its efforts so to perform its obligationsReceivables and enforcing such Receivables.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Zenith Electronics Corp)
Servicer Defaults. If any one of the following events (a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Trustee to make such paymentany required drawing, transfer withdrawal, or deposit payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer transfer, deposit, withdrawal or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any SupplementAgreement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the TrusteeTrustee or the Transferor, or to the Servicer Servicer, the Transferor and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 1050% of the aggregate unpaid principal amount Investor Interest of all any Series adversely affected thereby and continues to materially adversely affect such Investor Certificates (or, with respect to any Certificateholders for such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates)period; or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and Section 8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues to be incorrect in any material adverse effect continues respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the TrusteeTrustee or the Transferor, or to the Servicer Servicer, the Transferor and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 1050% of the aggregate unpaid principal amount Investor Interest of all any Series adversely affected thereby and continues to materially adversely affect such Investor Certificates (or, with respect to any Certificateholders for such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates)period; or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up winding‑up or liquidation of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the aggregate unpaid principal amount of all Aggregate Investor CertificatesInterest, by notice then given in writing to the Servicer (and to the Trustee and any Series Enhancement the Transferor if given by the Investor Certificateholders) (a “"Termination Notice”"), may terminate all but not less than all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each SupplementAgreement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a “Service Transfer”)Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact attorney‑in‑fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder including, including without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account, the Principal Account, and any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds, Recoveries and Interchange (if any) applicable to the Trust. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under the Credit Enhancement with respect to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (asubsection 10.01(a) above for a period of 10 Business Days after the applicable grace period or under paragraph (bsubsection 10.01(b) or (c) above for a period of 60 Business Days after the applicable grace periodDays, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Credit Enhancement Provider, the Sellers, any Series Enhancer Transferor and the Holders of Investor Certificateholders Certificates with an Officer’s 's Certificate of the Servicer giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (BA Master Credit Card Trust II)
Servicer Defaults. If any one of the following events (a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct Trustee to make such paymentany required drawing, transfer withdrawal, or deposit payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer transfer, deposit withdrawal or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any SupplementAgreement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agreement, which has a material adverse effect on the Investor Certificateholders Holders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, specifying such notice to be a notice of Servicer Default hereunder, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 1025% of the aggregate unpaid principal amount Investor Interest of all any Series adversely affected thereby and continue to materially adversely affect such Investor Certificates (or, with respect to any Holders for such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates)period; or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07Section 8.7;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders Holders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues to be incorrect in any material adverse effect continues respect for a period of 60 days after the date on which written notice thereofof such failure, specifying such notice to be a notice of Servicer Default hereunder, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 1025% of the aggregate unpaid principal amount Investor Interest of all any Series adversely affected thereby and continues to materially adversely affect such Investor Certificates (or, with respect to any Holders for such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates)period; or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation liquidating of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the such Servicer Default shall not have been remediedremedied or waived, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the aggregate unpaid principal amount of all Aggregate Investor CertificatesInterest, by notice then given in writing to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor CertificateholdersHolders) (a “"Termination Notice”"), may terminate all but not less than all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each SupplementAgreement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a “Service Transfer”)Servicer; and, without limitation, the and Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes purpose of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account, the Excess Funding Account, the Distribution Account, and any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under the Credit Enhancement with respect to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (asubsection 10.1(a) above for a period of 10 Business Days after the applicable grace period or under paragraph (bsubsection 10.1(b) or (c) above for a period of 60 30 Business Days after the applicable grace periodDays, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, the Sellersany Credit Enhancement Provider, any Series Enhancer Transferor, each Rating Agency and the Holders of Investor Certificateholders Certificates with an Officer’s 's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts to so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First National Bank of Commerce)
Servicer Defaults. If any one of the following events (a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Enhancement, in each case, within one Business Day after the date of the receipt by the Servicer of written notice from the Trustee or any Purchaser Representative that such payment, transfer transfer, deposit, withdrawal or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement Agreement, any Supplement or any SupplementReceivables Purchase Agreement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement Agreement, any Supplement or any Supplement Receivables Purchase Agreement, which has a material adverse effect on (i) the Investor Certificateholders Servicer's ability to collect the Receivables or otherwise perform its obligations under the Agreement, any Supplement or any Receivables Purchase Agreement or (ii) the collectibility or value of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) the Receivables, and which continues unremedied for a period of 60 45 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, a Purchaser Representative or an Enhancement Provider, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 1025% of the aggregate unpaid principal amount Investor Interest of all Investor Certificates (or, with respect to any such failure that does not relate to all Certificate Series, 10% of the aggregate unpaid principal amount of all Series to which or an Enhancement Provider and such failure relates)material adverse effect continues for such period; or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07Section 8.7;
(c) any representation, warranty or certification made by the Servicer in this Agreement Agreement, any Supplement or any Supplement Receivables Purchase Agreement or in any certificate delivered pursuant to this Agreement Agreement, any Supplement or any Supplement Receivables Purchase Agreement shall prove to have been incorrect when made, which has a material adverse effect on (i) the rights Servicer's ability to collect the Receivables or otherwise perform its obligations under the Agreement, any Supplement or any Receivables Purchase Agreement or (ii) the collectibility or value of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) Receivables, and which continues to be incorrect in any material adverse effect continues respect for a period of 60 45 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, a Purchaser Representative, or an Enhancement Provider or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less than 1025% of the aggregate unpaid principal amount Investor Interest of all Investor Certificates (or, with respect to any Certificate Series or an Enhancement Provider and such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which material adverse effect continues for such representation, warranty or certification relates)period; or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file commence or have commenced against it (unless dismissed within thirty days) as debtor a petition to take advantage of proceeding under any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Trust Interests and Purchaser Representatives of Receivables Purchase Series aggregating more than 5066-2/3% of the aggregate unpaid principal amount of all Investor CertificatesAggregate Investor/Purchaser Interest, by notice then given in writing to the Servicer Servicer, and each Purchaser Representative (and to the Trustee and any Series Enhancement if given by the Investor CertificateholdersCertificateholders or the Purchaser Representatives) (a “"Servicer Termination Notice”"), may terminate all but not less than all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Agreement. The Trustee shall grant a right promptly notify any Enhancement Provider of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising any such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each SupplementServicer Default. After receipt by the Servicer of a such Servicer Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a “Service Transfer”)Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder including, including without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account or any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer in enforcing all rights to Insurance Proceeds applicable to the Trust. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under any Enhancement with respect to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above subsection 10.1(a), for a cumulative period of 10 ten Business Days after the applicable grace period Days, or under paragraph (bsubsection 10.1(b) or (c) above ), for a cumulative period of 60 sixty Business Days after the applicable grace periodDays, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Enhancement Provider, the SellersSeller, any Series Enhancer and the Investor Certificateholders each Purchaser Representative with an Officer’s 's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Charming Shoppes Master Trust)
Servicer Defaults. If any one of the following events (a “"Servicer Default”") shall occur and be continuing:
(a) : any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to make such payment, transfer the terms of this Agreement or deposit any Supplement on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;
(b) ; failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the interests hereunder of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) or Class and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less more than 1050% of the aggregate unpaid principal amount of all Aggregate Investor Certificates Amount (or, with respect to any such failure that does not relate to all Series, 1050% of the aggregate unpaid principal amount Investor Amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections Section 8.02 or 8.07, a Responsible Officer of the Trustee has actual knowledge of such delegation and 8.07;
(c) such delegation continues unremedied for 15 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing more than 50% of the Aggregate Investor Amount; any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) or Class and which continues to be incorrect in any material adverse effect continues respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less more than 1050% of the aggregate unpaid principal amount of all Aggregate Investor Certificates Amount (or, with respect to any such representation, warranty or certification that does not relate to all Series, 1050% of the aggregate unpaid principal amount Investor Amount of all Series to which such representation, warranty or certification relates); or
(d) or the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have 78 remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, Trustee or the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Aggregate Investor CertificatesAmount, by notice then given to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a “"Termination Notice”"), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section subsection 10.02(c) to act as a Successor Servicer and receives an Officer’s 's Certificate of the Sellers Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to offer the Sellers which would permit the Sellers right at their option to purchase the Certificateholders’ ' Interest on the Distribution Date in next succeeding 60 days after the next calendar monthreceipt by the Servicer of a Termination Notice. The purchase price for the Certificateholders’ ' Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusaloption. If they any of the Sellers exercise such right of first refusaloption, the such Sellers shall (x) if such Sellers' short-term deposits or long-term unsecured debt obligations are not rated at the time at least P-3 or Baa3, respectively, by Moody's, deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the such Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a “Service Transfer”)Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder including, including without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds. The Servicer shall within 20 Business Days promptly transfer its electronic records 79 relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. Notwithstanding the foregoing, a any delay in or failure of performance referred to in paragraph (aunder subsection 10.01(a) above for a period of 10 5 Business Days after the applicable grace period or under paragraph subsection 10.01(b) or (c) for a period of 60 days (in addition to any period provided in subsection 10.01(a), (b) or (c)) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default until the expiration of such additional 5 Business Days or 60 days, respectively, if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of war, terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its respective obligations in a timely manner in accordance with the terms of this Agreement and any Supplement and the Servicer shall provide the Trustee, each Rating Agency, the Sellers, any Series Enhancer Holders of the Seller Certificates and the Investor Certificateholders with an Officer’s 's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts to so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Fleet Bank National Association /Ri/)
Servicer Defaults. If any one of the following events (a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to make such payment, transfer this Agreement or deposit any Supplement on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;
(b) failure on the part of the Servicer to duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the interests hereunder of the Investor Certificateholders Holders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 1025% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 1025% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 8.2 and 8.078.7, a Responsible Officer of Trustee has actual knowledge of such delegation and such delegation continues unremedied for 15 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to Servicer by Trustee, or to Servicer and Trustee by Holders of Investor Certificates evidencing not less than 25% of the aggregate unpaid principal amount of all Investor Certificates;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders Holders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues to be incorrect in any material adverse effect continues respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less than 1025% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 1025% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates); or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its propertyfail generally to, or admit in writing its inability to, pay its debts as they become due; or a decree or order of proceeding shall have been instituted in a court or agency or supervisory authority having jurisdiction in the premises seeking a decree or order for relief in respect of Servicer in an involuntary case under any Debtor Relief Law, or for the appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or receiver other similar official of such Person or liquidator in for any insolvency, readjustment substantial part of debt, marshalling of assets and liabilities or similar proceedingsits property, or for the winding-up or liquidation of its affairsaffairs and, if instituted against Servicer, any such proceeding shall have been entered against the Servicer and such decree or order shall have remained in force undischarged continue undismissed or unstayed and in effect, for a period of 60 consecutive days, or any of the actions sought in such proceeding shall occur; or the Servicer shall admit commencement by Servicer, of a voluntary case under any Debtor Relief Law, or such Person’s consent to the entry of an order for relief in writing an involuntary case under any Debtor Relief Law, or consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or other similar official of such Person or for any substantial part of its inability to pay its debts generally as they become dueproperty, file a petition to take advantage of or any applicable insolvency or reorganization statute, make any general assignment for the benefit of its creditors creditors; or voluntarily suspend payment such Person or any Subsidiary of its obligationssuch Person shall have taken any corporate action in furtherance of any of the foregoing actions; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, Trustee or the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificates, by notice then given to the Servicer (and to the Trustee and any Series Enhancement Provider entitled thereto pursuant to the relevant Supplement if given by the Investor CertificateholdersHolders) (a “Termination Notice”), may terminate all but not less than all the rights and obligations of the Servicer Servicer, as Servicer Servicer, under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “Service Transfer”); and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such the Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including the transfer to such the Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall within 20 Business Days promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary appropriate to protect its interestinterests. Notwithstanding the foregoing, a any delay in or failure of performance referred to in paragraph (aunder Section 10.1(a) above for a period of 10 five Business Days after the applicable grace period or under paragraph Section 10.1(b) or (c) for a period of 60 days (in addition to any period provided in Section 10.1(a), (b) or (c)) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default until the expiration of such additional five Business Days or 60 days, respectively, if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using the obligation to use its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the any Supplement and Servicer shall provide the Trustee, the Sellerseach Rating Agency, any Series Enhancer Enhancement Provider entitled thereto pursuant to the relevant Supplement, Transferor and the Investor Certificateholders Holders with an Officer’s Certificate giving prompt immediate notice of such failure or delay by it, together with a description of its efforts to so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Alliance Data Systems Corp)
Servicer Defaults. If any one of the following events (a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee to make such payment, transfer or deposit or to give notice to the Trustee as to any required drawing or payment under any Enhancement on or before the date occurring five Business Days after the date such payment, transfer transfer, deposit or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Supplement, which has a material adverse effect on the Investor Certificateholders of any Series then outstanding (which determination shall be made without regard to whether funds are then available pursuant to the amount of any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the TrusteeTrustee or the Transferor, or to the Servicer Servicer, the Transferor and the Trustee by the Holders of Investor Certificates evidencing not less Undivided Interests aggregating more than 1050% of the aggregate unpaid principal Invested Amount of any Series adversely affected thereby, and which continues to materially adversely affect the rights of the Certificateholders of any Series then outstanding(without regard to the amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); Enhancement) or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07Section 8.7; provided, however, that any such failure that relates to any particular Receivable or group of Receivables shall not constitute a Servicer Default if the Servicer has made a deposit in the Collection Account with respect to such failure in accordance with Section 3.3;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series then outstanding (without regard to the amount of any Enhancement) and which continues to be incorrect in any material respect and which continues to affect materially and adversely the rights of the Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to the amount of any Series Enhancement) and which material adverse effect continues for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the TrusteeTrustee or the Transferor, or to the Servicer Servicer, the Transferor and the Trustee by the Holders of Investor Certificates evidencing not less Undivided Interests aggregating more than 1050% of the aggregate unpaid principal amount Invested Amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates)adversely affected thereby; or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the such Servicer Default shall not have been remedied, either the Trustee, the Transferor or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the aggregate unpaid principal amount of all Investor CertificatesAggregate Invested Amount, by notice then given in writing to the Servicer (and to the Trustee and any Series Enhancement the Transferor if given by the Investor Certificateholders) (a “"Termination Notice”"), may terminate all but not less than all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; providedthereof and appoint a new Servicer (a "Service Transfer"). The rights and interests of the Transferor Interest will not be affected by any Service Transfer. The Trustee, however, if within 60 days of receipt of upon giving or receiving a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall immediately notify the Trustee prior to the Record Date for the Distribution Date Rating Agencies and any Enhancement Provider of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplementnotice. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a “Service Transfer”); Servicer, and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to take all reasonable actions to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Recoveries. The Servicer shall within 20 Business Days promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (aSection 10.1(a) above for a period of 10 Business Days after the applicable grace period or under paragraph (ba delay in or failure of performance referred to in Section 10.1(b) or (c) above for a period of 60 Business Days after the applicable grace period, period shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Enhancement Provider, the Sellers, any Series Enhancer Transferor and the Holders of Investor Certificateholders Certificates with an Officer’s 's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations. The Servicer shall immediately notify a Responsible Officer of the Trustee in writing of any Servicer Default.
Appears in 1 contract
Sources: Master Pooling and Servicing Agreement (Fnanb Credit Card Master Trust)
Servicer Defaults. If any one of the following events (a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee to make such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) an Adverse Effect and which continues unremedied for a period of 60 days after the date on which notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect an Adverse Effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates); or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificates, by notice then given to the Servicer (and to the Trustee and any Series Enhancement Enhancer if given by the Investor Certificateholders) (a “"Termination Notice”"), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s 's Certificate of the Sellers Seller to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers Seller which would permit the Sellers Seller at their its option to purchase the Certificateholders’ ' Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ ' Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers Seller shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are it is exercising such right of first refusal. If they exercise the Seller exercises such right of first refusal, the Sellers Seller shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon1:00 P.M., New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “"Service Transfer”"); and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer. The Servicer shall within 20 Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the -71- terms of this Agreement and the Servicer shall provide the Trustee, the Sellers, Seller and any Series Enhancer and the Investor Certificateholders with an Officer’s 's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Household Affinity Funding Corp)
Servicer Defaults. If any one of the following events (each, a “Servicer Default”) shall occur and be continuing(regardless of the reason therefor) with respect to Servicer:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee to make such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or givengiven by Servicer, as the case may be; provided, that, if such failure could not have been prevented by the exercise of reasonable due diligence by Servicer and the delay or failure was caused by an act of God or other similar occurrence, then a Servicer Default shall not be deemed to have occurred under this Section 5.1(a) until 35 Business Days after the terms date of this Agreement or any Supplementsuch failure;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and either Owner, which continues unremedied for a period of 60 days after the date on which written notice of such failure requiring the same to be remedied shall have been given to Servicer by either Owner; provided, that, if such failure could not have been prevented by the exercise of reasonable due diligence by Servicer and the delay or failure was caused by an act of God or other similar occurrence, then a Servicer Default shall not be deemed to have occurred under this Section 5.1(b) until 120 days after the date of such failure;
(c) Servicer delegates its duties, except as specifically permitted under Section 2.1, and the delegation remains unremedied for 15 days after written notice to Servicer by either Owner;
(d) any representation, warranty or certification made by Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has a material adverse effect on either Owner and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by either Owner; provided, that, if the Trustee, delay or to default could not have been prevented by the exercise of reasonable due diligence by Servicer and the Trustee delay or failure was caused by Holders an act of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (orGod or other similar occurrence, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the then Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues for a period of an additional 60 days after to cure the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates)default; or
(de) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its propertyfail generally to, or admit in writing its inability to, pay its debts as they become due; or a decree or order of proceeding shall have been instituted in a court or agency or supervisory authority having jurisdiction in the premises seeking a decree or order for relief in respect of Servicer in an involuntary case under any Debtor Relief Law, or for the appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or receiver other similar official of such Person or liquidator in for any insolvency, readjustment substantial part of debt, marshalling of assets and liabilities or similar proceedingsits property, or for the winding-up or liquidation of its affairsaffairs and, if instituted against Servicer, any such proceeding shall have been entered against the Servicer and such decree or order shall have remained in force undischarged continue undismissed or unstayed and in effect, for a period of 60 consecutive days, or any of the actions sought in such proceeding shall occur; or the Servicer shall admit commencement by Servicer, of a voluntary case under any Debtor Relief Law, or such Person’s consent to the entry of an order for relief in writing an involuntary case under any Debtor Relief Law, or consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or other similar official of such Person or for any substantial part of its inability to pay its debts generally as they become dueproperty, file a petition to take advantage of or any applicable insolvency or reorganization statute, make any general assignment for the benefit of its creditors creditors; or voluntarily suspend payment such Person or any Subsidiary of its obligationssuch Person shall have taken any corporate action in furtherance of any of the foregoing actions; then, in the event of any Servicer Defaultsuch event, so long as the Servicer Default shall not have been remediedSuccessor Owner (or, either the Trustee, or the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificates, by notice then given to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a “Termination Notice”), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date issuance of the purchase if they are exercising such right first Series of first refusal. If they exercise such right of first refusalNotes, the Sellers shall (xInitial Owner) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect thatmay, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer delivery of a Servicer Termination NoticeNotice to Servicer, and on terminate the date that a Successor servicing responsibilities of Servicer is appointed hereunder, without demand, protest or further notice of any kind, all of which are hereby waived by Servicer. Upon the Trustee pursuant to Section 10.02delivery of any such notice, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “Service Transfer”); andacting pursuant to Section 6.2, without limitationprovided, that notwithstanding anything to the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and delivercontrary herein, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate act as Servicer and to continue to follow the procedures set forth in this Agreement with respect to Collections on the Trustee and such Transferred Receivables under this Agreement until a Successor Servicer in effecting the termination of has assumed the responsibilities and rights obligations of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer. The Servicer shall within 20 Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Section 6.2. Servicer shall provide send prompt written notice to the Trustee, Owners of the Sellers, occurrence of any Series Enhancer and the Investor Certificateholders with an Officer’s Certificate giving prompt notice of such failure Servicer Default or delay by it, together with a description of its efforts so to perform its obligationspotential Servicer Default.
Appears in 1 contract
Sources: Servicing Agreement (GE Capital Credit Card Master Note Trust)
Servicer Defaults. If any one of the following events (a “----------------- "Servicer Default”") shall occur and be continuingcontinuing after the FCMT ---------------- Termination Date:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee to make such payment, transfer or deposit or to make any required drawing, withdrawal, or payment under any Enhancement required to be made by the Servicer on or before the date occurring five Business Days after the date such payment, transfer transfer, deposit, withdrawal or deposit drawing, or such instruction or notice is required to be made or givengiven by the Servicer, as the case may be, under the terms of this Agreement Agreement, the Indenture or any Indenture Supplement;; or
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and Noteholders, which continues unremedied for a period of 60 days after the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Indenture Trustee, or to the Servicer and the Indenture Trustee by Holders of Investor Certificates evidencing the Noteholders holding not less than 10% of the aggregate unpaid outstanding principal amount of all Investor Certificates (or, with respect any Series adversely affected thereby and continues to any materially adversely affect such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which Noteholders for such failure relates)period; or the Servicer shall assign or delegate Servicer's delegation of its duties under this Agreement, Agreement except as permitted by Sections 8.02 and 8.07;Section 5.7; or -----------
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) Noteholders and which continues to be incorrect in any material adverse effect continues respect for a period of 60 days after the date on which written notice thereof, of such failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Indenture Trustee, or to the Servicer and the Indenture Trustee by the Holders of Investor Certificates evidencing Noteholders holding not less than 10% of the aggregate unpaid outstanding principal amount of all Investor Certificates (orany Series adversely affected thereby and continues to materially adversely affect such Noteholders for such period, with respect or if such failure cannot be cured within such 60-day period owing to any such representation, warranty or certification that does not relate to all Series, 10% causes beyond the control of the aggregate unpaid principal amount Servicer, if the Servicer shall fail to proceed promptly to cure the same and prosecute the curing of all Series to which such representation, warranty or certification relates); orfailure with diligence and continuity;
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency(i) become insolvent, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability (ii) fail to pay its debts generally as they become due, file a petition to take advantage (iii) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any applicable insolvency Debtor Relief Law, or reorganization statute(iv) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, make any assignment for the benefit of its creditors other than as a creditor or voluntarily suspend payment of its obligations; thenclaimant, and, in the event of such proceeding is involuntary, the petition instituting same is not dismissed within 60 days after its filing; or
(e) with respect to any Servicer DefaultSeries, any other event specified in the Indenture Supplement for such Series, then, so long as the such Servicer Default shall not have been remedied, either the Indenture Trustee, or the Holders of Investor Certificates evidencing Noteholders holding more than 50% of the aggregate unpaid principal amount of all Investor CertificatesOutstanding Amount, by notice then given in writing to the Servicer (and to the Indenture Trustee and any Series Enhancement if given by the Investor CertificateholdersNoteholders) (a “"Termination Notice”"), ------------------ may terminate all but not less than all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, howeverthereof (other than its rights and interest, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act any, as a Successor Servicer and receives an Officer’s Certificate holder of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Seller Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplementor any Notes). After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Indenture Trustee pursuant to Section 10.027.2, all authority and power ----------- of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and the Successor Servicer (a “Service Transfer”); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the any Collection Account or Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds. The Servicer shall within 20 Business Days promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 7.1 ----------- shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding The Servicer shall, on the foregoingdate of any servicing transfer, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, the Sellers, any Series Enhancer and the Investor Certificateholders with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description transfer all of its efforts so rights and obligations, if any, in respect of any Enhancement to perform its obligationsthe Successor Servicer.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (First Consumers Master Trust)
Servicer Defaults. If any one of the following events (a “Servicer Default”"SERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Trustee to make such paymentany required drawing, transfer withdrawal, or deposit payment under any Credit Enhancement on or before the date occurring five ten Business Days after the date such payment, transfer transfer, deposit withdrawal or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any SupplementAgreement;
(b) (i) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which Agreement, if such failure has a material adverse effect on the Investor Certificateholders Holders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 1025% of the aggregate unpaid principal amount Investor Interest of all any Series adversely affected thereby, and during which time such failure continues to have a material adverse effect on such Investor Certificates Holders for such period (orprovided, however, that breach of a covenant that results in a Receivable becoming a Servicer Ineligible Receivable shall not constitute a Servicer Default, if such Receivable is repurchased in accordance with respect Section 3.10(c)); or (ii) delegation by the Servicer of its duties under this Agreement, except as permitted pursuant to Section 8.7;
(c) any such representation, warranty or certification that does made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has a material adverse effect on the Investor Holders of any Series and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not relate to all Series, 10less than 25% of the aggregate unpaid principal amount Investor Interest of all any Series adversely affected thereby and continues to which materially adversely affect such representation, warranty or certification relates)Investor Holders for such period; or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation liquidating of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the aggregate unpaid principal amount of all Aggregate Investor CertificatesInterest, by notice then given in writing to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor CertificateholdersHolders) (a “Termination Notice”"TERMINATION NOTICE"), may terminate all but not less than all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each SupplementAgreement. After receipt by the Servicer of a such Termination Notice, and on the date that a the Back-up Servicer or another Successor Servicer is appointed by the Trustee becomes Servicer pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the such Successor Servicer (a “Service Transfer”)Servicer; and, without limitation, and the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes purpose of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account, the Excess Funding Account, and any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Unearned Premiums applicable to the Trust. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under the Credit Enhancement with respect to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (asubsection 10.1(a) above for a period of 10 30 Business Days after the applicable grace period or under paragraph (bsubsection 10.1(b) or (c) above for a period of 60 Business Days after the applicable grace periodDays, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Credit Enhancement Provider, the Sellers, any Series Enhancer Transferor and the Holders of Investor Certificateholders Certificates with an Officer’s 's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Mellon Premium Finance Loan Owner Trust)
Servicer Defaults. If any one of the following events (a “"Servicer Default”") shall occur and be continuing:
: (a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee to make such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;
; (b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) an Adverse Effect and which continues unremedied for a period of 60 days after the date on which notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
3.1(a), 8.2, 8.5 or 8.7; (c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect an Adverse Effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect Adverse Effect continues for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates); or
or (d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificates, by notice then given to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a “"Termination Notice”"), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereofAgreement; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(csubsection 10.2(c) to act as a Successor Servicer and receives an Officer’s 's Certificate of the Sellers Transferor to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers Transferor which would permit the Sellers Transferor at their its option to purchase the Certificateholders’ ' Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ ' Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers Transferor shall notify the Trustee and the Rating Agency prior to the Record Date for the Distribution Date of the purchase if they are it is exercising such right of first refusal. If they exercise the Transferor exercises such right of first refusal, the Sellers Transferor shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon1:00 P.M., New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. The Transferor shall provide notice to the Rating Agency of the exercise by it of such right of first refusal. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “"Service Transfer”"); and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer. The Servicer shall within 20 Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its reasonable best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, the Sellers, Transferor and any Series Enhancer and the Investor Certificateholders with an Officer’s 's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Partners First Receivables Funding Corp)
Servicer Defaults. If any one of the following events (a “Servicer Default”"SERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to make such payment, transfer the terms of this Agreement or deposit any Supplement on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;
(b) any failure on the part of the Servicer to duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which failure has a material adverse effect on the interests hereunder of the Investor Certificateholders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07, a Responsible Officer of the Trustee has actual knowledge of such delegation and such delegation continues unremedied for 15 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues to be incorrect in any material adverse effect continues respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates); or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, Trustee or the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificates, by notice then given to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a “Termination Notice”), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “Service Transfer”); and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer. The Servicer shall within 20 Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, the Sellers, any Series Enhancer and the Investor Certificateholders with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.of
Appears in 1 contract
Sources: Pooling and Servicing Agreement (National City Credit Card Master Trust)
Servicer Defaults. If any one of the following events (a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee to make such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates); or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificates, by notice then given to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a “"Termination Notice”"), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s 's Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ ' Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ ' Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “"Service Transfer”"); and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-attorney- in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer. The Servicer shall within 20 Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, the Sellers, any Series Enhancer and the Investor Certificateholders with an Officer’s 's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Citibank South Dakota N A)
Servicer Defaults. If any one (a) Each of the following events (shall constitute a “Servicer Default”) shall occur and be continuing:
(ai) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee to make such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement on or any Supplementbefore three Business Days after the date such payment, transfer or deposit is required to be made;
(bii) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which that has a material adverse effect on the Investor Certificateholders holders of Notes of any Series (Series, which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which failure continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee, or by Noteholders holding an Outstanding Principal Balance of Notes of any Series equal to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10at least 50% of the aggregate unpaid principal amount Collateral Amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which if such failure relates)Noteholders are materially adversely affected thereby; or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 5.8, 5.11 and 8.075.13;
(ciii) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate or report delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders holders of the Notes of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect failure continues unremedied for a period of 60 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee, or to the Servicer and the Trustee by the Holders Noteholders holding an Outstanding Principal Balance of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates); or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage Notes of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing more than Series equal to at least 50% of the aggregate unpaid principal amount Collateral Amount of all Investor Certificatessuch Series if such Noteholders are materially adversely affected thereby; or
(iv) Servicer shall voluntarily seek, by notice then given consent to or acquiesce in the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a “Termination Notice”), may terminate all but not less than all the rights and obligations benefit or benefits of the Servicer as Servicer under this Agreement and in and Bankruptcy Code or, voluntarily or involuntarily, become a party to (or be made the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive subject of) any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “Service Transfer”); and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables proceeding provided for under this Agreementthe Bankruptcy Code, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, other than as creditor or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivablesclaimant, and in assisting the Successor Servicer. The Servicer shall within 20 Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in event such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidentialproceeding is involuntary, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall petition instituting same is not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, the Sellers, any Series Enhancer and the Investor Certificateholders with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description dismissed within 90 days of its efforts so to perform its obligationsfiling.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (Smurfit-Stone Container Enterprises Inc)
Servicer Defaults. If any one of the following events (a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to make such payment, transfer the terms of this Agreement or deposit any Supplement on or before the date date, occurring five ten Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the interests hereunder of the Investor Certificateholders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 33% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 33% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall delegate its duties under this Agreement except as permitted by Section 8.02 and 8.07, a Responsible officer, of the Trustee as actual knowledge of such delegation and such delegation continues unremedied for 15 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07Certificates;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect in any material respect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues to be incorrect in any material adverse effect continues respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates Certificates, evidencing not less than 1033% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 1033% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates); or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-winding up or liquidation of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 90 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificatesoutstanding Series, by written notice then given to the Servicer (and to the Trustee and any Series Enhancement Enhancer entitled thereto pursuant to the relevant Supplement if given by the Investor Certificateholders) (a “"Termination Notice”"), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; providedPROVIDED, howeverHOWEVER, that if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s 's Certificate of the Sellers Servicer or the Depositor, to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers Depositor which would permit the Sellers at their option Depositor to purchase the Certificateholders’ Certificateholders Interest on the Distribution Date in the next calendar month. The Trustee shall first solicit bids from unaffiliated third parties and, if at least two bids are obtained, the Trustee will offer the right of first refusal to the Depositor at a purchase price for equal to the Certificateholders’ Interest shall be higher of such bids so long as such purchase price is at least equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. If the Depositor does not exercise its right of first refusal, the Trustee may sell the Certificateholders' Interest to the highest bidder, so long as the purchase price is at least equal to the amount described in the preceding sentence. The Sellers Depositor shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are it is exercising such right of first refusalright. If they exercise it exercises such right of first refusalright, the Sellers Depositor shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, noon New York City time, on the Transfer Date immediately preceding such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a “"Service Transfer”); ") and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds. The Servicer shall within 20 Business Days promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at as such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.01 shall require the Servicer to disclose to the Successor Servicer information Information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem been necessary to protect its interestinterests. Notwithstanding the foregoing, a any delay in or failure of performance referred to in paragraph (aunder Section 10.01(a) above for a period of 10 five Business Days after the applicable grace period or under paragraph Section 10.01(b) or (c) or a period of 90 days (in addition to any period provided in Section 10.01(a), (b) or (c)) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default until the expiration of such additional five Business Days or 90 days, respectively, if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its respective obligations in a timely manner in accordance with the terms of this Agreement and any Supplement and the Servicer shall provide the Trustee, the Sellerseach Rating Agency, any Series Enhancer entitled thereto pursuant to the relevant Supplement, each Holder of the Depositor's Certificate and the Investor Certificateholders with an Officer’s 's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts efforts, to so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Ace Securities Corp)
Servicer Defaults. If any one of the following events (a “"Servicer Default”") shall occur and be continuing:
: (a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee to make such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;
; (b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) an Adverse Effect and which continues unremedied for a period of 60 days after the date on which notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates Securities evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates Securities (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
3.1(a), 8.2, 8.5 or 8.7; (c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect an Adverse Effect on the rights of the Investor Certificateholders Securityholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect Adverse Effect continues for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates Securities evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates Securities (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates); or
or (d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates Securities evidencing more than 50% of the aggregate unpaid principal amount of all Investor CertificatesSecurities, by notice then given to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a “Termination Notice”), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “Service Transfer”); and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer. The Servicer shall within 20 Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, the Sellers, any Series Enhancer and the Investor Certificateholders with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.the
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Partners First Credit Card Master Trust)
Servicer Defaults. If any one of the following events (a “----------------- "Servicer Default”") shall occur and be continuingcontinuing after the FCMT Termination ----------------- Date:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee to make such payment, transfer or deposit or to make any required drawing, withdrawal, or payment under any Enhancement required to be made by the Servicer on or before the date occurring five Business Days after the date such payment, transfer transfer, deposit, withdrawal or deposit drawing, or such instruction or notice is required to be made or givengiven by the Servicer, as the case may be, under the terms of this Agreement Agreement, the Indenture or any Indenture Supplement;; or
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and Noteholders, which continues unremedied for a period of 60 days after the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Indenture Trustee, or to the Servicer and the Indenture Trustee by Holders of Investor Certificates evidencing the Noteholders holding not less than 10% of the aggregate unpaid outstanding principal amount of all Investor Certificates (or, with respect any Series adversely affected thereby and continues to any materially adversely affect such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which Noteholders for such failure relates)period; or the Servicer shall assign or delegate Servicer's delegation of its duties under this Agreement, Agreement except as permitted by Sections 8.02 and 8.07;Section ------- 5.7; or ---
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) Noteholders and which continues to be incorrect in any material adverse effect continues respect for a period of 60 days after the date on which written notice thereof, of such failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Indenture Trustee, or to the Servicer and the Indenture Trustee by the Holders of Investor Certificates evidencing Noteholders holding not less than 10% of the aggregate unpaid outstanding principal amount of all Investor Certificates (orany Series adversely affected thereby and continues to materially adversely affect such Noteholders for such period, with respect or if such failure cannot be cured within such 60-day period owing to any such representation, warranty or certification that does not relate to all Series, 10% causes beyond the control of the aggregate unpaid principal amount Servicer, if the Servicer shall fail to proceed promptly to cure the same and prosecute the curing of all Series to which such representation, warranty or certification relates); orfailure with diligence and continuity;
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency(i) become insolvent, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability (ii) fail to pay its debts generally as they become due, file a petition to take advantage (iii) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any applicable insolvency Debtor Relief Law, or reorganization statute(iv) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, make any assignment for the benefit of its creditors other than as a creditor or voluntarily suspend payment of its obligations; thenclaimant, and, in the event of such proceeding is involuntary, the petition instituting same is not dismissed within 60 days after its filing; or
(e) with respect to any Servicer DefaultSeries, any other event specified in the Indenture Supplement for such Series, then, so long as the such Servicer Default shall not have been remedied, either the Indenture Trustee, or the Holders of Investor Certificates evidencing Noteholders holding more than 50% of the aggregate unpaid principal amount of all Investor CertificatesOutstanding Amount, by notice then given in writing to the Servicer (and to the Indenture Trustee and any Series Enhancement if given by the Investor CertificateholdersNoteholders) (a “"Termination Notice”"), may terminate all but not less than all ------------------ of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, howeverthereof (other than its rights and interest, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act any, as a Successor Servicer and receives an Officer’s Certificate holder of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Seller Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplementor any Notes). After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Indenture Trustee pursuant to Section 10.027.2, all authority and power of the Servicer under this Agreement ----------- shall pass to and be vested in a Successor Servicer; and the Successor Servicer (a “Service Transfer”); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-in- fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the any Collection Account or Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds. The Servicer shall within 20 Business Days promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 7.1 shall require the Servicer to ----------- disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding The Servicer shall, on the foregoingdate of any servicing transfer, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, the Sellers, any Series Enhancer and the Investor Certificateholders with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description transfer all of its efforts so rights and obligations, if any, in respect of any Enhancement to perform its obligationsthe Successor Servicer.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (First Consumers Master Trust)
Servicer Defaults. If any one of the following events (a “Servicer Default”"SERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to make such payment, transfer this Agreement or deposit any Supplement on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;
(b) failure on the part of the Servicer to duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the interests hereunder of the Investor Certificateholders Holders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 1025% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 1025% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 SECTIONS 8.2 and 8.078.7, a Responsible Officer of Trustee has actual knowledge of such delegation and such delegation continues unremedied for 15 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to Servicer by Trustee, or to Servicer and Trustee by 69 Holders of Investor Certificates evidencing not less than 25% of the aggregate unpaid principal amount of all Investor Certificates;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders Holders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues to be incorrect in any material adverse effect continues respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less than 1025% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 1025% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates); or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its propertyfail generally to, or admit in writing its inability to, pay its debts as they become due; or a decree or order of proceeding shall have been instituted in a court or agency or supervisory authority having jurisdiction in the premises seeking a decree or order for relief in respect of Servicer in an involuntary case under any Debtor Relief Law, or for the appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or receiver other similar official of such Person or liquidator in for any insolvency, readjustment substantial part of debt, marshalling of assets and liabilities or similar proceedingsits property, or for the winding-up or liquidation of its affairsaffairs and, if instituted against Servicer, any such proceeding shall have been entered against the Servicer and such decree or order shall have remained in force undischarged continue undismissed or unstayed and in effect, for a period of 60 consecutive days, or any of the actions sought in such proceeding shall occur; or the Servicer shall admit commencement by Servicer, of a voluntary case under any Debtor Relief Law, or such Person's consent to the entry of an order for relief in writing an involuntary case under any Debtor Relief Law, or consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or other similar official of such Person or for any substantial part of its inability to pay its debts generally as they become dueproperty, file a petition to take advantage of or any applicable insolvency or reorganization statute, make any general assignment for the benefit of its creditors creditors; or voluntarily suspend payment such Person or any Subsidiary of its obligationssuch Person shall have taken any corporate action in furtherance of any of the foregoing actions; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, Trustee or the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificates, by notice then given to the Servicer (and to the Trustee and any Series Enhancement Provider entitled thereto pursuant to the relevant Supplement if given by the Investor CertificateholdersHolders) (a “Termination Notice”"TERMINATION NOTICE"), may terminate all but not less than all the rights and obligations of the Servicer Servicer, as Servicer Servicer, under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.02SECTION 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “Service Transfer”"SERVICE TRANSFER"); and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such the Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including the transfer to such the Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds. The Servicer shall within 20 Business Days promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section SECTION 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary appropriate to protect its interestinterests. Notwithstanding the foregoing, a any delay in or failure of performance referred to in paragraph (aunder SECTION 10.1(a) above for a period of 10 five Business Days after the applicable grace period or under paragraph SECTION 10.1(b) or (c) for a period of 60 days (in addition to any period provided in SECTION 10.1(a), (b) or (c)) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default until the expiration of such additional five Business Days or 60 days, respectively, if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using the obligation to use its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the any Supplement and Servicer shall provide the Trustee, the Sellerseach Rating Agency, any Series Enhancer Enhancement Provider entitled thereto pursuant to the relevant Supplement, Transferor and the Investor Certificateholders Holders with an Officer’s 's Certificate giving prompt immediate notice of such failure or delay by it, together with a description of its efforts to so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (World Financial Network Credit Card Master Trust)
Servicer Defaults. If any one of the following events ----------------- (a “"Servicer Default”") shall occur and be continuing:: ----------------
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Trustee to make such paymentany required drawing, transfer withdrawal, or deposit payment under any Credit Enhancement on or before the date occurring five ten Business Days after the date such payment, transfer transfer, deposit withdrawal or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any SupplementAgreement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 1050% of the aggregate unpaid principal amount Investor Interest of all any Series adversely affected thereby and continues to materially adversely affect such Investor Certificates Certificateholders for such period; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7;
(or, with respect to c) any such representation, warranty or certification that does made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has a material adverse effect an the Investor Certificateholders of any Series and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not relate to all Series, 10less than 50% of the aggregate unpaid principal amount Investor Interest of all any Series adversely affected thereby and continues to which materially adversely affect such representation, warranty or certification relates)Investor Certificateholders for such period; or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the aggregate unpaid principal amount of all Aggregate Investor CertificatesInterest, by notice then given in writing to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a “"Termination ----------- Notice”"), may terminate all but not less than all of the rights and obligations of the Servicer ------ as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each SupplementAgreement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a “Service Transfer”)Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder including, including without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account, the Principal Account, the Excess Funding Account and any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such each customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under the Credit Enhancement with respect to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (asubsection 10.1(a) above for a period of 10 Business Days after the applicable grace period or under paragraph (bin subsection 10.1(b) or (c) above for a period of 60 Business Days after the applicable grace periodDays, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Credit Enhancement Provider, the Sellers, any Series Enhancer Transferor and the Holders of Investor Certificateholders Certificates with an Officer’s 's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Chase Manhattan Bank Usa)
Servicer Defaults. If any one of the following events (a “"Servicer Default”") shall occur and be continuingcontinuing with respect to the Servicer:
(a) any failure by the Servicer to make deliver, within two Business Days of the earlier date set forth below in clause (i) or (ii), any paymentDaily Report or, transfer within three Business Days of the earlier date set forth below in clause (i) or deposit or to give instructions or to give notice (ii), any Monthly Settlement Statement, in either case, conforming in all material respects to the Trustee to make such payment, transfer requirement of Section 4.01 or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given4.02, as the case may be, under in each case, after the terms earlier to occur of this Agreement or any Supplement;
(bi) failure on the part date upon which a Responsible Officer of the Servicer duly to observe obtains knowledge of such failure or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancementii) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Company or the Trustee, or to the Company, the Servicer and the Trustee by Holders from holders of Investor Certificates evidencing not less than 1025% or more of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to Aggregate Invested Amount or by any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07Agent;
(cb) any representation, warranty or certification made failure by the Servicer in this to pay any amount required to be paid by it under any Pooling and Servicing Agreement on or any Supplement or in any certificate delivered pursuant before the date occurring five Business Days after the earlier to this Agreement or any Supplement shall prove to have been incorrect when made, occur of (i) the date upon which has a material adverse effect on the rights Responsible Officer of the Investor Certificateholders Servicer obtains knowledge of any Series such failure or (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancementii) and which material adverse effect continues for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Company or the Trustee, or to the Company, the Servicer and the Trustee by the Holders holders of Investor Certificates evidencing not less than 1025% or more of the aggregate unpaid principal amount Aggregate Invested Amount or by any Agent;
(c) failure on the part of all the Servicer duly to observe or to perform in any material respect any other of its covenants or agreements set forth in any Pooling Servicing Agreement 23 and Servicing Agreement, which failure has a material adverse effect on the holders of any Outstanding Series and which material adverse effect continues unremedied for 30 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Company and the Servicer by the Trustee, or to the Company, the Servicer and the Trustee by holders of Investor Certificates (orevidencing 25% or more of the Aggregate Invested Amount or by any Agent; provided, that no Servicer Default shall be deemed to occur under this subsection with respect to a failure on the part of the Servicer if the Servicer shall have complied with the provisions of Section 5.02(b) with respect thereto;
(d) any such representation, warranty or certification that does not relate made by the Servicer in any Pooling and Servicing Agreement or in any certificate delivered pursuant thereto shall prove to all Serieshave been incorrect in any material respect when made or deemed made, 10which incorrectness has a material adverse effect on the holders of any Outstanding Series and which material adverse effect continues unremedied for 30 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Company and the Servicer by the Trustee, or to the Company, the Servicer and the Trustee by holders of Investor Certificates evidencing 25% or more of the aggregate unpaid principal amount Aggregate Invested Amount or by any Agent; provided, that no Servicer Default shall be deemed to occur under this subsection with respect to a failure on the part of all Series to which such representation, warranty or certification relates); or
(d) the Servicer if the Servicer shall consent to have complied with the appointment provisions of Section 5.02(b) with respect thereto;
(i) a conservator court having jurisdiction in the premises shall enter a decree or receiver or liquidator order for relief in any insolvency, readjustment respect of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer in an involuntary case under any Applicable Insolvency Law, which decree or of or relating to all or substantially all its propertyorder is not stayed, or any other similar relief shall be granted under any applicable Federal or state law and shall not be stayed; (ii) an involuntary case is commenced against the Servicer under any Applicable Insolvency Law, a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator receiver, liquidator, sequestrator, trustee, custodian or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or other officer having similar proceedingspowers over the Servicer, or over all or a substantial part of the winding-up or liquidation property of its affairs, the Servicer shall have been entered against entered, an interim receiver, trustee or other custodian of the Servicer for all or a substantial part of the property of the Servicer is involuntarily appointed or a warrant of attachment, execution or similar process is issued against any substantial part of the property of the Servicer, and the continuance of any such decree events in this clause (ii) for 60 days unless dismissed, bonded or order shall have remained in force undischarged or unstayed for a period of 60 daysdischarged; or (iii) the Servicer shall admit at its request have a decree or an order for relief entered with respect to it, commence a voluntary case under the Bankruptcy Code or any Applicable Insolvency Law, consent to the entry of a decree or an order for relief in writing an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such law, or consent to the appointment of or taking possession by a receiver, trustee or other custodian of all or a substantial part of its inability to pay its debts generally as they become due, file a petition to take advantage property; (iv) the making by the Servicer of any applicable insolvency or reorganization statute, make any general assignment for the benefit of creditors; (v) the inability or failure of the Servicer generally to pay its creditors debts as such debts become due; or voluntarily suspend (vi) the Board of Directors of the Servicer adopts any resolution or otherwise authorizes action to approve any of the foregoing; or
(f) one or more judgments for the payment of its obligationsmoney (to the extent not bonded or covered by insurance to the reasonable satisfaction of the Agent) shall be rendered against the Servicer (i) in an aggregate amount greater than $10,000,000 or (ii) that, individually or in the aggregate, have resulted or could reasonably be expected to result in a Material Adverse Effect with respect to the Servicer and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to levy upon assets or properties of the Servicer to enforce such judgment or judgments; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remediedremedied or waived, either the Company (with the consent of the Trustee) may, or the Holders Company at the direction of the Trustee shall, and the Company and the Trustee shall, at the written direction of the holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor CertificatesAggregate Invested Amount voting as a single class, by notice then given in writing to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) each Rating Agency (a “"Termination Notice”"), may terminate all but not less than all or any part of the rights and obligations of the Servicer as Servicer Servicing Agreement 25 under this Agreement the Pooling and in and Servicing Agreements. Notwithstanding anything to the Receivables and contrary in this Section 6.01, a delay in or failure of performance referred to under clause (b) above for a period of 10 Business Days after the proceeds thereof; providedapplicable grace period or a delay in or failure of performance referred to under clauses (a), however(c) or (d) above for a period of 30 Business Days after the applicable grace period shall not constitute a Servicer Default, if within 60 days such delay or failure could not have been prevented by the exercise of receipt of a Termination Notice reasonable diligence by the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant such delay or failure was caused by a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each SupplementForce Majeure Delay. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Company and the Trustee pursuant to Section 10.026.02, all authority and power of the Servicer under this any Pooling and Servicing Agreement to the extent specified in such Termination Notice shall pass to and be vested in the a Successor Servicer (a “"Service Transfer”"), as the case may be; and, without limitation, the Trustee is hereby directed, authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-attorney- in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or to deliver such documents or instruments, and to do and to accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer and the Trustee shall incur no liability in connection with effecting such Service Transfer. The Servicer agrees to cooperate with the Company and the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing its duties hereunder, including including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreementthe Pooling and Servicing Agreements (including, including without limitation, all authority over all Collections which that shall on the date of transfer be held by the Servicer for deposit, or which that have been deposited by the Servicer, in the Collection Account, or which that shall thereafter be received with respect to the Receivables), and in assisting the Successor Servicer. The Upon a Service Transfer, the terminated Servicer shall within 20 Business Days transfer (x) promptly assemble all of its electronic documents, instruments and other records relating (including credit files, licenses (to the extent transferable), rights, copies of all relevant computer programs and any necessary licenses (to the extent transferable) for the use thereof, related material, computer tapes, disks, cassettes and data) that (i) evidence or record Receivables sold and assigned to the Trust and (ii) are otherwise necessary to enable a Successor Servicer Servicing Agreement 26 to coordinate servicing of all such Receivables and to prepare and deliver Daily Reports and Monthly Settlement Statements, with or without the participation of the terminated Servicer, (y) promptly deliver or license (to the extent transferable) the use of all of the foregoing documents, instruments and other records to such Successor Servicer at a place designated by such Successor Servicer and (z) provide the Successor Servicer with access to its facilities, equipment, personnel, systems and leasehold agreements to assist the Successor Servicer in performing its obligations hereunder. In recognition of the terminated Servicer's need to have access to any such electronic form as the documents, instruments and other records that may be transferred to a Successor Servicer may reasonably request hereunder, whether as a result of its continuing responsibility as a servicer of accounts receivable that are not sold and shall promptly transfer assigned to the Successor Servicer all other recordsTrust or otherwise, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably requestprovide to the terminated Servicer reasonable access to such documents, instruments and other records transferred by the terminated Servicer to it in connection with any activity arising in the ordinary course of the terminated Servicer's business; provided that the terminated Servicer shall not disrupt or otherwise interfere with the Successor Servicer's use of and access to such documents, instruments and other records. To the extent that compliance with this Section 6.01 shall require the terminated Servicer to disclose to the Successor Servicer information of any kind which that the terminated Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the terminated Servicer shall reasonably deem necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented All costs and expenses incurred by the exercise terminated Servicer, the Successor Servicer and the Trustee in connection with any Service Transfer shall be for the account of reasonable diligence the terminated Servicer, as the case may be, and to the extent any costs or expenses incurred by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall Trustee are not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trusteeso paid, the Sellers, any Series Enhancer and Trustee shall be entitled to be paid such items from amounts that would otherwise be distributable to the Investor Certificateholders with an Officer’s Certificate giving prompt notice Company under Article III of such failure or delay by it, together with a description of its efforts so to perform its obligationsthe Pooling Agreement.
Appears in 1 contract
Sources: Servicing Agreement (American Axle & Manufacturing Holdings Inc)
Servicer Defaults. If any one of the following events (a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Trustee to make such paymentany required drawing, transfer withdrawal, or deposit payment under any Credit Enhancement on or before the date occurring five ten Business Days after the date such payment, transfer transfer, deposit, withdrawal or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any SupplementAgreement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 1050% of the aggregate unpaid principal amount Investor Interest of all any Series adversely affected thereby and continues to materially adversely affect such Investor Certificates Certificateholders for such period; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7;
(or, with respect to c) any such representation, warranty or certification that does made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has a material adverse effect on the Investor Certificateholders of any Series and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not relate to all Series, 10less than 50% of the aggregate unpaid principal amount Investor Interest of all any Series adversely affected thereby and continues to which materially adversely affect such representation, warranty or certification relates)Investor Certificateholders for such period; or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the aggregate unpaid principal amount of all Aggregate Investor CertificatesInterest, by notice then given in writing to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a “Termination Notice”), may terminate all but not less than all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each SupplementAgreement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a “Service Transfer”)Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder including, including without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account, the Principal Account, the Excess Funding Account and any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under the Credit Enhancement with respect to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (asubsection 10.1(a) above for a period of 10 Business Days after the applicable grace period or under paragraph (bin subsection 10.1(b) or (c) above for a period of 60 Business Days after the applicable grace perioddays, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Credit Enhancement Provider, the Sellers, any Series Enhancer Transferor and the Holders of Investor Certificateholders Certificates with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Usa Credit Card Master Trust)
Servicer Defaults. If any one of the following events (each being a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or deposit, or, if applicable, to give instructions or to give notice to the Trustee to make such payment, transfer or deposit deposit, or to give notice to the Trustee as to any action to be taken under any Enhancement Agreement, or any failure to provide the Determination Date Certificate to the Trustee, on or before the date occurring three Business Days, in the case of payments of principal and interest to the Certificateholders, or five Business Days Days, in the case of any other payment, after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any SupplementAgreement;
(b) any failure on the part of by the Servicer duly to observe or perform in any material respect any other covenants covenant or agreements agreement of the Servicer set forth in this Agreement or any Supplement Agreement, which failure has a material adverse effect on the Investor interest of the Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 30 days after the date on which notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any covenant contained in Sections 3.04(a), 3.04(b), 3.04(h) and 3.04(i), continues unremedied for five days) after the earlier of (i) knowledge of such failure that does not relate to all Series, 10% by a Responsible Officer of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
(cii) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less than 1025% of the aggregate unpaid principal amount Invested Amount of all any Series; or the Servicer shall assign its duties under this Agreement, except as permitted by Section 8.02;
(c) any representation, warranty or certification made by the Servicer under or in connection with this Agreement, or in any certificate or information delivered pursuant to or in connection with this Agreement, shall prove to have been incorrect in any material respect when made and which has a material adverse effect on the interests of the Certificateholders of any Series and which material adverse effect continues for a period of 30 days (or, with respect to any representation and warranty made in Sections 2.03(g) and 2.03(h), continues for five days) after the earlier of (i) knowledge of such incorrectness by a Responsible Officer of the Servicer and (ii) the date on which written notice thereof, requiring the same to be remedied, shall have been given (i) to the Servicer by the Trustee or (ii) to the Servicer and the Trustee by any Investor Certificates Certificateholder (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount Majority in Interest of all Series to which such representation, warranty or certification relates); or
(d) the Servicer an Insolvency Event shall consent occur with respect to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligationsServicer; then, in the event of any Servicer Default, so as long as the such Servicer Default shall not have been remediedremedied and is continuing, either the Trustee, Trustee (unless otherwise directed by the Majority in Interest of each Series) or the Holders Majority in Interest of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificateseach Series, by notice then given in writing to the Servicer (and to the Trustee and any Series Enhancement if given by the such Investor Certificateholders) (each such notice being a “"Termination Notice”"), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement Agreement. The Trustee shall be deemed to have knowledge of a Servicer Default if it has actual knowledge or if a Responsible Officer has received written notice thereof. The Majority in Interest of each Series may, on behalf of all Certificateholders, waive any default by the Transferor or the Servicer in the performance of their obligations hereunder and in its consequences, except the failure to make any distributions required to be made to Certificateholders or to make any required deposits of any amounts to be so distributed. Upon any such waiver of a past default, such default shall cease to exist, and any default arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplementextent expressly so waived. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the such Successor Servicer (a “"Service Transfer”"); and, without limitation, the Trustee is hereby authorized authorized, empowered and empowered instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-in fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate cooperate, at its expense, with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables as provided for under this Agreement, including all authority over all Collections which shall on the date of transfer such Service Transfer be held by the Servicer for depositdeposit to any Wheeling-Pittsburgh Collection Account, the Concentration Account, the Trustee's Account or the Transferor's Account, or which have been deposited by the Servicer, in the Servicer to any Wheeling-Pittsburgh Collection Account, the Concentration Account, or any other account, or which shall thereafter be received with respect to the Receivables, and in (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting to make the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Servicer Transfer. The Servicer shall shall, at its expense, within 20 five Business Days transfer its electronic of such Service Transfer, (A) assemble such documents, instruments and other records relating to (including computer tapes and discs), which evidence the Receivables and the other Trust Assets, and which are necessary or desirable to collect the Receivables, and shall make the same available to the Successor Servicer or the Trustee or its designee at a place selected by the Successor Servicer or the Trustee and in such electronic form as the Successor Servicer or the Trustee may reasonably request request, and shall promptly transfer (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Receivables in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all other recordssuch cash, correspondence checks and documents necessary for instruments to the continued servicing Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trust's ownership of the Receivables to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the manner Trustee may direct the Obligors of Receivables, or any of them, that payment of all amounts payable under any such Receivables be made directly to the Trustee or its designee;
(3) The Servicer shall, at its expense and at the Trustee's or Successor Servicer's request as soon as possible but in any event not more than three Business Days after such times request, (x) assemble such documents, instruments and other records (including, without limitation, computer tapes and disks) which evidence the Receivables and the other Trust Assets, and which are necessary or desirable to collect the Receivables, and shall make the same available to the Successor Servicer or the Trustee or its designee at a place selected by the Successor Servicer or the Trustee -77- and in such form as the Successor Servicer shall or the Trustee may reasonably request. To the extent that compliance with this Section shall require the Servicer , and (y) segregate all cash, checks and other instruments received by it from time to disclose time constituting Collections of such Receivables in a manner acceptable to the Successor Servicer information and the Trustee and, promptly upon receipt, remit all such cash, checks and instruments, duly endorsed or with duly executed instruments of transfer, to the Trustee or its designee; and
(4) Each of the Transferor and each Certificate- holder hereby authorizes the Trustee to take any kind which and all steps in the Servicer reasonably deems Transferor's name and on behalf of the Trans- feror and the Certificateholders necessary or desirable, in the determination of the Trustee, to be confidentialcollect all amounts due under any and all Receivables, including, without limitation, endorsing the Successor Servicer shall be required to enter into Transferor's name on checks and other instruments representing Collections in respect of such customary licensing Receivables and confidentiality agreements as the Servicer shall deem necessary to protect its interestenforcing such Receivables. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (aSection 10.01(a) above for a period of 10 ten Business Days after the applicable grace period period, or under paragraph (bSection 10.01(b) or (c) above for a period of 60 Business Days fifteen days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be have been prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods floods, union strikes, work stoppages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement Agreement, and the Servicer shall provide the Trustee, the SellersTransferor, any Series Enhancer Enhancement Provider and the Investor Certificateholders with an Officer’s 's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Wheeling Pittsburgh Corp /De/)
Servicer Defaults. If any event specified as a servicer default in an Indenture Supplement or any one of the following events (each a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee to make such payment, transfer or deposit on or before the date occurring five (5) Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or givengiven by the Servicer, as the case may be, under the terms of this Agreement Agreement, the Indenture or any Indenture Supplement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement Agreement, the Indenture or any Indenture Supplement which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 sixty (60) days after the date on which notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by Holders of Investor Certificates Notes evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates Notes Outstanding (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Notes Outstanding of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 6.02, 6.05 and 8.076.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) an Adverse Effect and which material adverse effect Adverse Effect continues for a period of 60 sixty (60) days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates Notes Outstanding (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Notes Outstanding of all Series to which such representation, warranty or certification relates); or
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings Proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or an action seeking a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedingsProceedings, or the winding-up or liquidation of its affairs, shall have been entered commenced against the Servicer and such decree or order action shall have remained in force undischarged or unstayed for a period of 60 dayssixty (60) days or an order or decree providing for such relief shall have been entered; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statuteDebtor Relief Law, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing more than 50% a majority of the aggregate unpaid principal amount of all Investor CertificatesNotes Outstanding, by notice then given to the Servicer Servicer, the Transferor and the Owner Trustee (and to the Indenture Trustee and any Series Enhancement if given by the Investor CertificateholdersNoteholders) (a “Termination Notice”), may terminate all but not less than all of the rights and obligations of the Servicer as Servicer under this Agreement Agreement, the Indenture and in and to the Receivables and the proceeds thereofeach Indenture Supplement; provided, however, if within 60 sixty (60) days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c8.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall grant a right of first refusal to the Sellers Transferor which would permit the Sellers Transferor at their its option to purchase the Certificateholders’ Interest Notes on the Distribution Date in the next calendar month. The Indenture Trustee shall notify each Rating Agency of any Servicer Default of which a Responsible Officer has actual knowledge and shall provide each Rating Agency with a copy of any Termination Notice given to the Servicer and the Owner Trustee pursuant to this Section 8.01. The purchase price for the Certificateholders’ Interest Notes purchased pursuant to the preceding paragraph shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Indenture Supplement. The Sellers Transferor shall notify the Indenture Trustee prior to the Record Date for the Distribution Date of the purchase if they are it is exercising such right of first refusal. If they exercise the Transferor exercises such right of first refusal, the Sellers Transferor shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon11:00 a.m., New York City time, on the Transfer Date preceding such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders Noteholders in accordance with Article IV and the terms of the Indenture and each Indenture Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.028.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “Service Transfer”); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer. The Servicer shall within 20 twenty (20) Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. The predecessor Servicer shall be responsible for all expenses incurred in transferring the servicing duties to the Successor Servicer. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 ten (10) Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 sixty (60) Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of war, terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the SellersIssuer, each Transferor and any Series Enhancer and the Investor Certificateholders with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (Compucredit Corp)
Servicer Defaults. If any one of the following events (a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee to make such payment, transfer or deposit or to give notice to the Trustee as to any required drawing or payment under any Enhancement on or before the date occurring five (5) Business Days after the date such payment, transfer transfer, deposit or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; provided, however, that any such failure caused by circumstances beyond the Servicer's control shall not constitute a Servicer Default if the Servicer promptly remedies such failure within five (5) Business Days after receiving notice of such failure or otherwise becoming aware of such failure;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Supplement, which has a material adverse effect on the Investor Certificateholders of any Series then outstanding (which determination shall be made without regard to whether funds are then available pursuant to the amount of any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less Undivided Interests aggregating more than 1050% of the aggregate unpaid principal Investor Amount of any Series adversely affected thereby, and which continues to materially adversely affect the rights of the Investor Certificateholders of any Series then outstanding (without regard to the amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relatesEnhancement); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07Section 8.7;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, and which has a material adverse effect on the rights of the Investor Certificateholders of any Series then outstanding (which determination shall be made without regard to whether funds are then available pursuant to the amount of any Series Enhancement) and which continues to be incorrect in any material adverse effect respect and which continues to affect materially and adversely the rights of the Certificateholders of any Series then outstanding (without regard to the amount of any Enhancement) for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates); or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificates, by notice then given to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a “Termination Notice”), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “Service Transfer”); and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer. The Servicer shall within 20 Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, the Sellers, any Series Enhancer and the Investor Certificateholders with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.written
Appears in 1 contract
Sources: Master Pooling and Servicing Agreement (Proffitts Credit Corp)
Servicer Defaults. If any one of the following events (a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Trustee to make such paymentany required drawing, transfer withdrawal, or deposit payment under any Enhancement on or before the date occurring five Business Days after the date such payment, transfer transfer, deposit withdrawal or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any SupplementAgreement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 1050% of the aggregate unpaid principal amount Invested Amount of all any Series adversely affected thereby and continues to materially adversely affect such Investor Certificates Certificateholders for such period; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.07;
(or, with respect to c) any such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates); or
(d) made by the Servicer shall consent to the appointment of a conservator in this Agreement or receiver or liquidator in any insolvencycertificate delivered pursuant to this Agreement shall prove to have been incorrect when made, readjustment which has a material adverse effect on the Investor Certificateholders of debt, marshalling of assets any Series and liabilities or similar proceedings of or relating which continues to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator be incorrect in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed material respect for a period of 60 days; or days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing more Undivided Interests aggregating not less than 50% of the aggregate unpaid principal amount Invested Amount of all Investor Certificates, by notice then given to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a “Termination Notice”), may terminate all but not less than all the rights adversely affected thereby and obligations of the Servicer as Servicer under this Agreement and in and continues to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising materially adversely affect such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “Service Transfer”)for such period; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer. The Servicer shall within 20 Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, the Sellers, any Series Enhancer and the Investor Certificateholders with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.or
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Usa Credit Card Master Trust)
Servicer Defaults. If any one of the following events (a “----------------- "Servicer Default”") shall occur and be continuingcontinuing after the SMT Termination ---------------- Date:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee pursuant to the Indenture or to make such paymentany required drawing, transfer withdrawal, or deposit payment under any Enhancement required to be made by the Servicer on or before the date occurring five Business Days after the date such payment, transfer transfer, deposit, withdrawal or deposit drawing, or such instruction or notice is required to be made or givengiven by the Servicer, as the case may be, under the terms of this Agreement or any Supplement;the Indenture; or
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and Noteholders, which continues unremedied for a period of 60 days after the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Indenture Trustee, or to the Servicer and the Indenture Trustee by Holders of Investor Certificates evidencing the Noteholders holding not less than 10% of the aggregate unpaid outstanding principal amount of all Investor Certificates (or, with respect any Series adversely affected thereby and continues to any materially adversely affect such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which Noteholders for such failure relates)period; or the Servicer shall assign or delegate Servicer's delegation of its duties under this Agreement, Agreement except as permitted by Sections 8.02 and 8.07;Section 5.7; or -----------
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) Noteholders and which continues to be incorrect in any material adverse effect continues respect for a period of 60 days after the date on which written notice thereof, of such failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Indenture Trustee, or to the Servicer and the Indenture Trustee by the Holders of Investor Certificates evidencing Noteholders holding not less than 10% of the aggregate unpaid outstanding principal amount of all Investor Certificates (orany Series adversely affected thereby and continues to materially adversely affect such Noteholders for such period, with respect or if such failure cannot be cured within such 60-day period owing to any such representation, warranty or certification that does not relate to all Series, 10% causes beyond the control of the aggregate unpaid principal amount Servicer, if the Servicer shall fail to proceed promptly to cure the same and prosecute the curing of all Series to which such representation, warranty or certification relates)failure with diligence and continuity; or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency(i) become insolvent, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability (ii) fail to pay its debts generally as they become due, file a petition to take advantage (iii) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any applicable insolvency Debtor Relief Law, or reorganization statute(iv) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, make any assignment for the benefit of its creditors other than as a creditor or voluntarily suspend payment of its obligations; thenclaimant, and, in the event of any Servicer Defaultsuch proceeding is involuntary, the petition instituting same is not dismissed within 60 days after its filing; then, so long as the such Servicer Default shall not have been remedied, either the Indenture Trustee, or the Holders of Investor Certificates evidencing Noteholders holding more than 50% of the aggregate unpaid outstanding principal amount of all Investor Certificatesthe Notes, by notice then given in writing to the Servicer (and to the Indenture Trustee and any Series Enhancement if given by the Investor CertificateholdersNoteholders) (a “"Termination Notice”"), may terminate all but not less than all of the rights and ------------------ obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Indenture Trustee pursuant to Section 10.027.2, all ----------- authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and the Successor Servicer (a “Service Transfer”); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the any Collection Account or Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds. The Servicer shall within 20 Business Days promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 7.1 ----------- shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding The Servicer shall, on the foregoingdate of any servicing transfer, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, the Sellers, any Series Enhancer and the Investor Certificateholders with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description transfer all of its efforts so rights and obligations, if any, in respect of any Enhancement to perform its obligationsthe Successor Servicer.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (Spiegel Master Trust)
Servicer Defaults. If any one of the following events (subject to the last paragraph of this Section 7.01, a “"Servicer Default”") shall occur and be continuingcontinuing after the Certificate Trust Termination Date:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to Indenture Trustee pursuant to Article VIII of the Indenture (as modified by any Indenture Supplement) or to instruct Indenture Trustee to make such paymentany required drawing, transfer withdrawal or deposit payment under any Enhancement on or before the later of (i) the date occurring five 10 Business Days after the date such payment, transfer transfer, deposit, withdrawal or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement Agreement, the Indenture or any SupplementIndenture Supplement or (ii) three Business Days after written notice of such failure shall have been given to Servicer;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Investor Certificateholders Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee, or to the Servicer and the Indenture Trustee by the Holders of Investor Certificates evidencing not less than 1050% of the aggregate unpaid principal amount Outstanding Amount of all Investor Certificates (or, with respect any Series adversely affected thereby and continues to any materially adversely affect such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which Holders for such failure relates)period; or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07Section 5.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues to be incorrect in any material adverse effect continues respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee, or to the Servicer and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing not less than 1050% of the aggregate unpaid principal amount Outstanding Amount of all Investor Certificates (or, with respect any Series adversely affected thereby and continues to any materially adversely affect such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which Holders for such representation, warranty or certification relates)period; or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, ; or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then;
(e) with respect to any Series, any other event specified in the event of any Servicer DefaultIndenture Supplement for such Series, then, so long as the such Servicer Default shall not have been remediedremedied or waived, either the Indenture Trustee, or the Majority Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificatesoutstanding Series, by notice then given in writing to the Servicer (and to the Indenture Trustee and any Series Enhancement if given by the Investor CertificateholdersMajority Holders) and to any Enhancement Provider entitled thereto pursuant to the applicable Indenture Supplement (a “"Termination Notice”"), may terminate all but not less than all of the rights and obligations (other than unsatisfied obligations for acts or omissions during its tenure as Servicer) of the Servicer as Servicer under this Agreement and in and to Agreement. Upon the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt occurrence of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination NoticeDefault, the Indenture Trustee shall grant a right promptly notify each Rating Agency of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each SupplementServicer Default. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Indenture Trustee pursuant to Section 10.027.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “"Service Transfer”"); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate with the Indenture Trustee and such the Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including the transfer to such the Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account or any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to Issuer. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 7.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. Servicer shall, on the date of any Service Transfer, transfer all of its rights and obligations under the Enhancement with respect to any Series to the Successor Servicer. Servicer being terminated shall bear all costs of a Service Transfer, including but not limited to those of Indenture Trustee reasonably allocable to specific employees and overhead, legal fees and expenses, accounting and financial consulting fees and expenses, and costs of amending this Agreement, if necessary. Notwithstanding the foregoing, a any delay in or failure of performance referred to in paragraph (aSection 7.01(a) above for a period of 10 ten Business Days after the applicable grace period or under paragraph Section 7.01(b) or (c) for a period of 60 days (in addition to any period provided in Section 7.01(a), (b) or (c)) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default until the expiration of such additional ten Business Days or 60 days, respectively, if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornados, earthquakes, floods nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using the obligation to use its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Sellerseach Rating Agency, any Series Enhancer Enhancement Provider entitled thereto pursuant to the relevant Indenture Supplement and the Investor Certificateholders Transferor with an Officer’s 's Certificate giving prompt immediate notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts to so to perform its obligations.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (First Bankcard Master Credit Card Trust)
Servicer Defaults. If any one of the following events (a “----------------- "Servicer Default”") shall occur and be continuingcontinuing after the FCMT Termination ---------------- Date:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee to make such payment, transfer or deposit or to make any required drawing, withdrawal, or payment under any Enhancement required to be made by the Servicer on or before the date occurring five Business Days after the date such payment, transfer transfer, deposit, withdrawal or deposit drawing, or such instruction or notice is required to be made or givengiven by the Servicer, as the case may be, under the terms of this Agreement Agreement, the Indenture or any Indenture Supplement;; or
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and Noteholders, which continues unremedied for a period of 60 days after the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Indenture Trustee, or to the Servicer and the Indenture Trustee by Holders of Investor Certificates evidencing the Noteholders holding not less than 10% of the aggregate unpaid outstanding principal amount of all Investor Certificates (or, with respect any Series adversely affected thereby and continues to any materially adversely affect such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which Noteholders for such failure relates)period; or the Servicer shall assign or delegate Servicer's delegation of its duties under this Agreement, Agreement except as permitted by Sections 8.02 and 8.07;Section 5.7; or -----------
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) Noteholders and which continues to be incorrect in any material adverse effect continues respect for a period of 60 days after the date on which written notice thereof, of such failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Indenture Trustee, or to the Servicer and the Indenture Trustee by the Holders of Investor Certificates evidencing Noteholders holding not less than 10% of the aggregate unpaid outstanding principal amount of all Investor Certificates (orany Series adversely affected thereby and continues to materially adversely affect such Noteholders for such period, with respect or if such failure cannot be cured within such 60-day period owing to any such representation, warranty or certification that does not relate to all Series, 10% causes beyond the control of the aggregate unpaid principal amount Servicer, if the Servicer shall fail to proceed promptly to cure the same and prosecute the curing of all Series to which such representation, warranty or certification relates); orfailure with diligence and continuity;
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency(i) become insolvent, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability (ii) fail to pay its debts generally as they become due, file a petition to take advantage (iii) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any applicable insolvency Debtor Relief Law, or reorganization statute(iv) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, make any assignment for the benefit of its creditors other than as a creditor or voluntarily suspend payment of its obligations; thenclaimant, and, in the event of such proceeding is involuntary, the petition instituting same is not dismissed within 60 days after its filing; or
(e) with respect to any Servicer DefaultSeries, any other event specified in the Indenture Supplement for such Series, then, so long as the such Servicer Default shall not have been remedied, either the Indenture Trustee, or the Holders of Investor Certificates evidencing Noteholders holding more than 50% of the aggregate unpaid principal amount of all Investor CertificatesOutstanding Amount, by notice then given in writing to the Servicer (and to the Indenture Trustee and any Series Enhancement if given by the Investor CertificateholdersNoteholders) (a “"Termination Notice”"), may terminate all but not less than all ------------------ of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, howeverthereof (other than its rights and interest, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act any, as a Successor Servicer and receives an Officer’s Certificate holder of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Seller Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplementor any Notes). After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Indenture Trustee pursuant to Section 10.027.2, all authority and power of the Servicer under this Agreement ----------- shall pass to and be vested in a Successor Servicer; and the Successor Servicer (a “Service Transfer”); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the any Collection Account or Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds. The Servicer shall within 20 Business Days promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 7.1 shall require the Servicer to disclose to the Successor ----------- Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding The Servicer shall, on the foregoingdate of any servicing transfer, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, the Sellers, any Series Enhancer and the Investor Certificateholders with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description transfer all of its efforts so rights and obligations, if any, in respect of any Enhancement to perform its obligationsthe Successor Servicer.
Appears in 1 contract
Servicer Defaults. If any one of the following events (a “----------------- "Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee to make such payment, transfer or deposit or to give notice to the Trustee as to any required drawing or payment under any Enhancement on or before the date occurring five Business Days after the date such payment, transfer transfer, deposit or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Supplement, which has a material adverse effect on the Investor Certificateholders of any Series then outstanding (which determination shall be made without regard to whether funds are then available pursuant to the amount of any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the TrusteeTrustee or the Transferor, or to the Servicer Servicer, the Transferor and the Trustee by the Holders of Investor Certificates evidencing not less Undivided Interests aggregating more than 1050% of the aggregate unpaid principal Invested Amount of any Series adversely affected thereby, and which continues to materially adversely affect the rights of the Certificateholders of any Series then outstanding(without regard to the amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); Enhancement) or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07Section 8.7; provided, however, that any such failure that relates to any particular -------- ------- Receivable or group of Receivables shall not constitute a Servicer Default if the Servicer has made a deposit in the Collection Account with respect to such failure in accordance with Section 3.3;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series then outstanding (without regard to the amount of any Enhancement) and which continues to be incorrect in any material respect and which continues to affect materially and adversely the rights of the Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to the amount of any Series Enhancement) and which material adverse effect continues for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the TrusteeTrustee or the Transferor, or to the Servicer Servicer, the Transferor and the Trustee by the Holders of Investor Certificates evidencing not less Undivided Interests aggregating more than 1050% of the aggregate unpaid principal amount Invested Amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates)adversely affected thereby; or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such 84 decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the such Servicer Default shall not have been remedied, either the Trustee, the Transferor or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the aggregate unpaid principal amount of all Investor CertificatesAggregate Invested Amount, by notice then given in writing to the Servicer (and to the Trustee and any Series Enhancement the Transferor if given by the Investor Certificateholders) (a “"Termination ----------- Notice”"), may terminate all but not less than all of the rights and obligations of the Servicer as ------ Servicer under this Agreement and in and to the Receivables and the proceeds thereof; providedthereof and appoint a new Servicer (a "Service Transfer"). The rights and ---------------- interests of the Transferor Interest will not be affected by any Service Transfer. The Trustee, however, if within 60 days of receipt of upon giving or receiving a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall immediately notify the Trustee prior to the Record Date for the Distribution Date Rating Agencies and any Enhancement Provider of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplementnotice. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a “Service Transfer”); Servicer, and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to take all reasonable actions to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Recoveries. The Servicer shall within 20 Business Days promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (aSection 10.1(a) above for a period of 10 Business Days after the applicable grace period or under paragraph (ba delay in or failure of performance referred to in Section 10.1(b) or (c) above for a period of 60 Business Days after the applicable grace period, period shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Enhancement Provider, the Sellers, any Series Enhancer Transferor and the Holders of Investor Certificateholders Certificates with an Officer’s 's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations. The Servicer shall immediately notify a Responsible Officer of the Trustee in writing of any Servicer Default.
Appears in 1 contract
Sources: Master Pooling and Servicing Agreement (Fnanb Credit Card Master Trust)
Servicer Defaults. If any one of the following events ----------------- (a “"Servicer Default”") shall occur and be continuing:: ----------------
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee to make such payment, transfer or deposit or any withdrawal or to give notice to the Trustee as to any required drawing or payment under any Enhancement on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has could reasonably have a material adverse effect on the Investor Certificateholders (other than a failure with respect to which there is no reasonable likelihood of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and such an effect), which continues unremedied for a period of 60 days after the earlier of discovery by the Servicer or the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests in the Trust aggregating not less than 1050% of the aggregate unpaid principal amount Invested Amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates)adversely affected thereby; or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and Section 8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or Agreement, any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has could reasonably have a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues for Certificateholders for a period of 60 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests in the Trust aggregating not less than 1050% of the aggregate unpaid principal amount Invested Amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates)adversely affected thereby; or
(d) the Servicer shall consent voluntarily seeks, consents to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction acquiesces in the premises benefit or benefits of any Debtor Relief Law or becomes a party to (or is made the subject of) any proceeding provided for by any Debtor Relief Law, other than as creditor or claimant, and in the appointment of a conservator or receiver or liquidator in any insolvencyevent such proceeding is involuntary, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation petition instituting the same is not dismissed within 90 days of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligationsfiling; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the aggregate unpaid principal amount of all Investor CertificatesAggregate Invested Amount, by notice then given in writing to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a “"Termination Notice”"), may terminate all but not less than all of the rights ------------------ and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.0210.02 of the Agreement, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a “"Service Transfer”"); and, without ---------------- limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Trustee shall, as soon as practicable, notify the Servicer Letter of Credit Bank of such Service Transfer and surrender the Servicer Letter of Credit to the Servicer Letter of Credit Bank for cancellation. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer. The Servicer shall within 20 Business Days promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality and nondisclosure agreements as the Servicer shall deem reasonably necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (aunder Section 10.01(a) above of the Agreement for a period of 10 Business Days after the applicable grace period or under paragraph (bSection 10.01(b) or (c) above of the Agreement for a period of 60 Business Days after the applicable grace periodDays, shall not constitute a Servicer Default Default, if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act Act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its respective obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Enhancement Provider, the Sellers, any Series Enhancer Transferor and the Investor Certificateholders with an Officer’s Officers' Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts to so to perform its obligations. The Servicer shall immediately notify the Trustee in writing of any Servicer Default.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Firestone Retail Credit Corp)
Servicer Defaults. If any one of the following events (a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee to make such payment, transfer or deposit or to give notice to the Trustee as to any required drawing or payment under any Enhancement on or before the date occurring five Business Days after the date such payment, transfer transfer, deposit or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Supplement, which has a material adverse effect on the Investor Certificateholders of any Series then outstanding (which determination shall be made without regard to whether funds are then available pursuant to the amount of any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the TrusteeTrustee or the Transferor, or to the Servicer Servicer, the Transferor and the Trustee by the Holders of Investor Certificates evidencing not less Undivided Interests aggregating more than 1050% of the aggregate unpaid principal Invested Amount of any Series adversely affected thereby, and which continues to materially adversely affect the rights of the Certificateholders of any Series then outstanding (without regard to the amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); Enhancement) or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07Section 8.7; provided, however, that any such failure that relates to any particular Receivable or group of Receivables shall not constitute a Servicer Default if the Servicer has made a deposit in the Collection Account with respect to such failure in accordance with Section 3.3;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series then outstanding (without regard to the amount of any Enhancement) and which continues to be incorrect in any material respect and which continues to affect materially and adversely the rights of the Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to the amount of any Series Enhancement) and which material adverse effect continues for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the TrusteeTrustee or the Transferor, or to the Servicer Servicer, the Transferor and the Trustee by the Holders of Investor Certificates evidencing not less Undivided Interests aggregating more than 1050% of the aggregate unpaid principal amount Invested Amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates)adversely affected thereby; or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the such Servicer Default shall not have been remedied, either the Trustee, the Transferor or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the aggregate unpaid principal amount of all Investor CertificatesAggregate Invested Amount, by notice then given in writing to the Servicer (and to the Trustee and any Series Enhancement the Transferor if given by the Investor Certificateholders) (a “Termination Notice”), may terminate all but not less than all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; providedthereof and appoint a new Servicer (a “Service Transfer”). The rights and interests of the Transferor Interest will not be affected by any Service Transfer. The Trustee, however, if within 60 days of receipt of upon giving or receiving a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall immediately notify the Trustee prior to the Record Date for the Distribution Date Rating Agencies and any Enhancement Provider of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplementnotice. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a “Service Transfer”); Servicer, and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to take all reasonable actions to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Recoveries. The Servicer shall within 20 Business Days promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (aSection 10.1(a) above for a period of 10 Business Days after the applicable grace period or under paragraph (ba delay in or failure of performance referred to in Section 10.1(b) or (c) above for a period of 60 Business Days after the applicable grace period, period shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Enhancement Provider, the Sellers, any Series Enhancer Transferor and the Holders of Investor Certificateholders Certificates with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations. The Servicer shall immediately notify a Responsible Officer of the Trustee in writing of any Servicer Default.
Appears in 1 contract
Sources: Master Pooling and Servicing Agreement (Circuit City Credit Card Master Trust)
Servicer Defaults. If any one of the following events (a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to make such payment, transfer the terms of this Agreement or deposit any Supplement on or before the date occurring five ten (10) Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the interests hereunder of the Investor Certificateholders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 sixty (60) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the TrusteeTrustee or the Transferor, or to the Servicer Servicer, the Transferor and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07, a Responsible Officer of the Trustee has actual knowledge of such delegation and such delegation continues unremedied for 15 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee or the Transferor, or to the Servicer, the Transferor and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues to be incorrect in any material adverse effect continues respect for a period of 60 sixty (60) days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the TrusteeTrustee or the Transferor, or to the Servicer Servicer, the Transferor and the Trustee by the Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates); or
(d) the Servicer shall consent to the appointment of a conservator or receiver conservator, receiver, trustee or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver conservator, receiver, trustee or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 sixty (60) days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, the Transferor or the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificatesoutstanding Series, by written 77 notice then given to the Servicer (and to the Trustee Trustee, the Transferor, and any Series Enhancement Enhancer entitled thereto pursuant to the relevant Supplement if given by the Investor Certificateholders) (a “"Termination Notice”"), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 sixty (60) days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s 's Certificate of the Sellers Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers Transferor which would permit the Sellers Transferor at their its option to purchase the Certificateholders’ ' Interest on the Distribution Date in the next calendar month; provided further, however, the foregoing right of first refusal shall not apply in the case of a Servicer Default set forth in subsection 10.01(d). The purchase price for the Certificateholders’ ' Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers Transferor shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusaloption. If they exercise it exercises such right of first refusaloption, the Sellers Transferor shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the SellersTransferor, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City Richmond, Virginia time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a “Service Transfer”)Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the the, purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds. The Servicer shall within 20 Business Days promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. Notwithstanding the foregoing, a any delay in or failure of performance referred to in paragraph (aunder Section 10.01(a) above for a period of 10 five (5) Business Days after the applicable grace period or under paragraph Section 10.01(b) or (c) for a period of sixty (60) days (in addition to any period provided in Section 10.01(a), (b) or (c)) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default until the expiration of such additional five (5) Business Days or sixty (60) days, respectively, if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of or terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its respective obligations in a timely manner in accordance with the terms of this Agreement and any Supplement and the Servicer shall provide the Trustee, the Sellerseach Rating Agency, any Series Enhancer entitled thereto pursuant to the relevant Supplement, each Holder of a Transferor Certificate and the Investor Certificateholders with an Officer’s 's Certificate of the Servicer giving prompt notice of such failure or delay by it, together with a description of its efforts to so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Capital One Master Trust)
Servicer Defaults. If any one of the following events (subject to the last paragraph of this Section 7.01, a “"Servicer Default”") shall occur and be continuingcontinuing after the Certificate Trust Termination Date:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to Indenture Trustee pursuant to Article VIII of the Indenture (as modified by any Indenture Supplement) or to instruct Indenture Trustee to make such paymentany required drawing, transfer withdrawal or deposit payment under any Enhancement on or before the later of (i) the date occurring five 10 Business Days after the date such payment, transfer transfer, deposit, withdrawal or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement Agreement, the Indenture or any SupplementIndenture Supplement or (ii) three Business Days after written notice of such failure shall have been given to Servicer;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Investor Certificateholders Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee, or to the Servicer and the Indenture Trustee by the Holders of Investor Certificates evidencing not less than 1025% of the aggregate unpaid principal amount Outstanding Amount of all Investor Certificates (or, with respect any Series adversely affected thereby and continues to any materially adversely affect such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which Holders for such failure relates)period; or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07Section 5.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues to be incorrect in any material adverse effect continues respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee, or to the Servicer and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing not less than 1025% of the aggregate unpaid principal amount Outstanding Amount of all Investor Certificates (or, with respect any Series adversely affected thereby and continues to any materially adversely affect such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which Holders for such representation, warranty or certification relates)period; or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, ; or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then;
(e) with respect to any Series, any other event specified in the event of any Servicer DefaultIndenture Supplement for such Series, then, so long as the such Servicer Default shall not have been remediedremedied or waived, either the Indenture Trustee, or the Majority Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificatesoutstanding Series, by notice then given in writing to the Servicer (and to the Indenture Trustee and any Series Enhancement if given by the Investor CertificateholdersMajority Holders) and to any Enhancement Provider entitled thereto pursuant to the applicable Indenture Supplement (a “"Termination Notice”"), may terminate all but not less than all of the rights and obligations (other than unsatisfied obligations for acts or omissions during its tenure as Servicer) of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of Agreement. Upon Indenture Trustee's receipt of notice, or actual knowledge of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate Responsible Officer of Indenture Trustee, of the Sellers to the effect that the occurrence of a Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination NoticeDefault, the Indenture Trustee shall grant a right promptly notify each Rating Agency of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each SupplementServicer Default. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Indenture Trustee pursuant to Section 10.027.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “"Service Transfer”"); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate with the Indenture Trustee and such the Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including the transfer to such the Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account or any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to Issuer. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 7.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. Servicer shall, on the date of any Service Transfer, transfer all of its rights and obligations under the Enhancement with respect to any Series to the Successor Servicer. Servicer being terminated shall bear all costs of a Service Transfer, including but not limited to those of Indenture Trustee reasonably allocable to specific employees and overhead, legal fees and expenses, accounting and financial consulting fees and expenses, and costs of amending this Agreement, if necessary. Notwithstanding the foregoing, a any delay in or failure of performance referred to in paragraph (aSection 7.01(a) above for a period of 10 ten Business Days after the applicable grace period or under paragraph Section 7.01(b) or (c) for a period of 60 days (in addition to any period provided in Section 7.01(a), (b) or (c)) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default until the expiration of such additional ten Business Days or 60 days, respectively, if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornados, earthquakes, floods nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using the obligation to use its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Sellerseach Rating Agency, any Series Enhancer Enhancement Provider entitled thereto pursuant to the relevant Indenture Supplement and the Investor Certificateholders Transferor with an Officer’s 's Certificate giving prompt immediate notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts to so to perform its obligations.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (First Bankcard Master Credit Card Trust)
Servicer Defaults. If any one of the following events (a “Servicer Default”"SERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee to make such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;
(b) failure on the part of the Servicer or any Co-Servicer duly to observe or perform in any material respect any other of the covenants or agreements of the Servicer or Co-Servicer set forth in this Agreement or any Supplement Relevant Document which has a material adverse effect Material Adverse Effect on the interests of the Beneficiaries as a whole or of the Investor Certificateholders Beneficiaries of any Applicable Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer or, if applicable, any Co-Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less Beneficiaries representing in aggregate more than 10% one-half of the aggregate unpaid principal amount Investor Interests of all any Applicable Series adversely affected thereby (copied to the Receivables Trustee) and continues to have a Material Adverse Effect on the interests of an Investor Certificates Beneficiary of any Applicable Series for such period;
(or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or b) delegation by the Servicer shall assign or delegate any Co-Servicer of its duties under this AgreementAgreement to any other entity, except as permitted by Sections 8.02 and 8.07Clause 3.7;
(c) any relevant representation, warranty or certification made by the Servicer or any Co-Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove hereto proves to have been incorrect when made, which has a material adverse effect Material Adverse Effect on the rights interests of the Investor Certificateholders Beneficiaries of any Applicable Series (which determination shall and continues to be made without regard to whether funds are then available pursuant to incorrect in any Series Enhancement) and which material adverse effect continues respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer or, if applicable, any Co-Servicer by the Trustee, an Investor Beneficiary or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less Beneficiaries representing in aggregate more than 10% one-half of the aggregate unpaid principal amount Investor Interests of all any Applicable Series affected thereby (copied to the Receivables Trustee) and continues to have a Material Adverse Effect on the interests of an Investor Certificates (or, with respect to Beneficiary of any Applicable Series affected for such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates); orperiod;
(d) the Servicer or any Co-Servicer shall consent to or take any corporate action relating to the appointment of a conservator or receiver or liquidator in any insolvencyreceiver, readjustment of debtadministrator, marshalling of assets and liabilities administrative receiver, liquidator, trustee or similar proceedings officer of or relating to the Servicer or of it or relating to all or substantially all of its property, revenues and assets or a decree or an order of a the court or agency or supervisory authority having jurisdiction in the premises is made for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the its winding-up up, dissolution, administration or liquidation of its affairs, shall have been entered against the Servicer reorganisation (except for a solvent re-organisation) and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; days or a receiver, administrator, administrative receiver, liquidator, trustee or similar officer of it or relating to all of its revenues and assets is legally and validly appointed;
(e) a duly authorised officer of the Servicer or any Co-Servicer shall admit in writing its inability that the Servicer or such Co-Servicer is unable to pay its debts generally as they become due, file fall due within the meaning of Section 123(1) of the Insolvency Act 1986 or the Servicer or s▇▇▇ ▇▇-▇ervicer makes a petition to take advantage of any applicable insolvency or reorganization statute, make any general assignment for the benefit of or a composition with its creditors or voluntarily suspend suspends payment of its obligations; thenobligations with a view to the general readjustment or rescheduling of its indebtedness, in the event of any Servicer Default, then so long as the such Servicer Default shall not have been remedied, either remedied the Trustee, Beneficiaries acting together or (as the Holders of case may be) the Investor Certificates evidencing Beneficiaries representing in aggregate more than 5066 2/3% of the aggregate unpaid principal amount of all Aggregate Investor CertificatesInterest, by notice then given in writing to the Servicer or, if applicable, the Co-Servicer (and copied to the Trustee and any Series Enhancement if given by the Investor CertificateholdersReceivables Trustee) (a “Termination Notice”"TERMINATION NOTICE"), may terminate all but not less than all of the rights and obligations of the Servicer and any Co-Servicer as Servicer and Co-Servicer respectively under this Agreement and in and to Agreement. For the Receivables and the proceeds thereof; providedavoidance of doubt, however, if within 60 days of receipt of a any Termination Notice the Trustee does not receive any bids from Eligible Servicers given in accordance with Section 10.02(c) to act as a Successor this Clause 4.1 shall terminate the appointment of both the Servicer and receives an Officer’s Certificate any Co-Servicer regardless of which entity was the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Trustee pursuant to Section 10.02, all authority and power subject of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “Service Transfer”); and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer. The Servicer shall within 20 Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestDefault. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph Clause 4.1(a), (b) or (c) above for a period of 60 Business Days after the applicable grace periodDays, shall not constitute a Servicer Default if such delay or failure could not be have been prevented by the exercise of reasonable diligence by the Servicer or Co-Servicer, as the case may be, and such delay or failure was caused by an act of God or the public enemyGod, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power cuts or similar causes. The preceding sentence shall not relieve the Servicer or Co-Servicer from using its best reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and any relevant agreement and the Servicer and, if applicable, the Co-Servicer shall provide the Trusteeany Enhancement Provider, the SellersTransferor, any Series Enhancer Additional Transferor and the Investor Certificateholders each Beneficiary with an Officer’s 's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 1 contract
Sources: Beneficiaries Servicing Agreement (Gracechurch Receivables Trustee LTD)
Servicer Defaults. If any one of the following events (a “Servicer Default”"SERVICER DEFAULT") shall occur and be continuingcontinuing after the Certificate Trust Termination Date:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee to make such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit transfer, deposit, or such instruction or notice is required to be made or givengiven by Servicer, as the case may be, under the terms of this Agreement Agreement, the Indenture or any Indenture Supplement;; or
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Investor Certificateholders Noteholders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and ), which continues unremedied for a period of 60 days after the date on which written notice of such failurefailure requiring the same to be remedied shall have been given to Servicer by Indenture Trustee, or to Servicer and Indenture Trustee by the Noteholders holding not less than 25% of the Outstanding Amount (or, with respect to any failure that does not relate to all Series, 25% of the aggregate outstanding principal amount of all Series to which such failure relates); or Servicer shall delegate its duties under this Agreement except as permitted by SECTION 5.2 or 5.7, a Responsible Officer of Indenture Trustee has actual knowledge of such delegation and such delegation continues unremedied for 15 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee, or to the Servicer and the Indenture Trustee by Holders of Investor Certificates evidencing Noteholders holding not less than 1025% of the aggregate unpaid principal amount of all Investor Certificates (Outstanding Amount; or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders Noteholders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues to be incorrect in any material adverse effect continues respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee, or to the Servicer and the Indenture Trustee by the Holders of Investor Certificates evidencing Noteholders holding not less than 1025% of the aggregate unpaid principal amount of all Investor Certificates Outstanding Amount (or, with respect to any such representation, warranty or certification that does not relate to all Series, 1025% of the aggregate unpaid outstanding principal amount of all Series to which such representation, warranty or certification relates); or;
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its propertyfail generally to, or admit in writing its inability to, pay its debts as they become due; or a decree or order of proceeding shall have been instituted in a court or agency or supervisory authority having jurisdiction in the premises seeking a decree or order for relief in respect of Servicer in an involuntary case under any Debtor Relief Law, or for the appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or receiver other similar official of such Person or liquidator in for any insolvency, readjustment substantial part of debt, marshalling of assets and liabilities or similar proceedingsits property, or for the winding-up or liquidation of its affairsaffairs and, if instituted against Servicer, any such proceeding shall have been entered against the Servicer and such decree or order shall have remained in force undischarged continue undismissed or unstayed and in effect, for a period of 60 consecutive days, or any of the actions sought in such proceeding shall occur; or the Servicer shall admit commencement by Servicer, of a voluntary case under any Debtor Relief Law, or such Person's consent to the entry of an order for relief in writing an involuntary case under any Debtor Relief Law, or consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or other similar official of such Person or for any substantial part of its inability to pay its debts generally as they become dueproperty, file a petition to take advantage of or any applicable insolvency or reorganization statute, make any general assignment for the benefit of its creditors creditors; or voluntarily suspend payment such Person or any Subsidiary of its obligationssuch Person shall have taken any corporate action in furtherance of any of the foregoing actions; or
(e) with respect to any Series, any other event specified in the Indenture Supplement for such Series, then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates evidencing Noteholders holding more than 50% of the aggregate unpaid principal amount of all Investor CertificatesOutstanding Amount, by notice then given to the Servicer (and to the Indenture Trustee and any Series Enhancement Provider entitled thereto pursuant to the relevant Indenture Supplement if given by the Investor CertificateholdersNoteholders) (a “Termination Notice”"TERMINATION NOTICE"), may terminate all but not less than all the rights and obligations of the Servicer Servicer, as Servicer Servicer, under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt . Upon the occurrence of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination NoticeDefault, the Indenture Trustee shall grant a right promptly notify each Rating Agency of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each SupplementServicer Default. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Indenture Trustee pursuant to Section 10.02SECTION 7.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “Service Transfer”"SERVICE TRANSFER"); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperate with the Indenture Trustee and such the Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including the transfer to such the Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds. The Servicer shall within 20 Business Days promptly transfer its electronic records relating to the 42 Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section SECTION 7.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary appropriate to protect its interestinterests. Notwithstanding the foregoing, a any delay in or failure of performance referred to in paragraph (aunder SECTION 7.1(a) above for a period of 10 five Business Days after the applicable grace period or under paragraph SECTION 7.1(b) or (c) for a period of 60 days (in addition to any period provided in SECTION 7.1(a), (b) or (c)) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default until the expiration of such additional five Business Days or 60 days, respectively, if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using the obligation to use its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Sellerseach Rating Agency, any Series Enhancer Enhancement Provider entitled thereto pursuant to the relevant Indenture Supplement and the Investor Certificateholders Transferor with an Officer’s 's Certificate giving prompt immediate notice of such failure or delay by it, together with a description of its efforts to so to perform its obligations.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (World Financial Network Credit Card Master Trust)
Servicer Defaults. If any one of the following events (a “Servicer Default”) shall occur and be continuing:Servicer
(a) any failure by the Servicer to make any payment, transfer or deposit or to give notice or instructions or to give notice to the Indenture Trustee to make such any required withdrawal or payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice Servicer is required to be made or given, as the case may be, do so under the terms of this Agreement Agreement, the Indenture or any Indenture Supplement, or within the applicable grace period, which will not exceed thirty-five (35) Business Days;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect an Adverse Effect on the Investor Certificateholders Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) Series, Class or Tranche of Notes and which continues unremedied for a period of 60 sixty (60) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the Collateral Agent, or to the Servicer Servicer, the Owner Trustee, the Indenture Trustee and the Trustee Collateral Agent by Holders of Investor Certificates Notes evidencing not less than 1050% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% Classes or Tranches of the aggregate unpaid principal amount of all Series to which Notes sustaining such failure relates)Adverse Effect; or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 7.02, 7.05 and 8.077.06;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect an Adverse Effect on the rights of the Investor Certificateholders Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) Series, Class or Tranche of notes and which material adverse effect Adverse Effect continues for a period of 60 sixty (60) days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee, the Collateral Agent, or to the Servicer Servicer, the Owner Trustee, the Indenture Trustee and the Trustee Collateral Agent by the Holders of Investor Certificates Notes evidencing not less than 1050% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% Classes or Tranches of the aggregate unpaid principal amount of all Series Notes to which such representation, warranty or certification relates); or;
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-winding- up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 sixty (60) days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) any other Servicer Default described in any Indenture Supplement; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificatesaffected Notes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee and any Series Enhancement if given by the Investor CertificateholdersNoteholders) (a “Termination Notice”), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereofAgreement; provided, however, if within 60 sixty (60) days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(csubsection 10.02(a) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall grant a right assume the role of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each SupplementSuccessor Servicer. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “Service Transfer”); ) and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables Collateral provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the ReceivablesCollateral, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall within 20 twenty (20) Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables Collateral in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 ten (10) Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 sixty (60) Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the SellersOwner Trustee, any Series Enhancer the Collateral Agent and the Investor Certificateholders Transferor with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 1 contract
Sources: Transfer and Servicing Agreement
Servicer Defaults. If any one of the following events (a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give notice or instructions or to give notice to the Indenture Trustee to make such any required payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice Servicer is required to be made or given, as the case may be, do so under the terms of this Agreement Agreement, the Indenture or any applicable Indenture Supplement, or within the applicable grace period, which will not exceed five (5) Business Days; provided, however, that any such failure caused by a nonwillful act of the Servicer shall not constitute a Servicer Default if the Servicer promptly remedies such failure within five (5) Business Days after receiving notice of such failure or otherwise becoming aware of such failure;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect an Adverse Effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) Noteholders and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by Holders of Investor Certificates Noteholders evidencing not less than 1050% of the aggregate unpaid principal amount of all Investor Certificates Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, 10Classes or Tranches of Notes, not less than 50% of the aggregate unpaid principal amount of all Series Series, Classes or Tranches of Notes to which such failure relatesrelated); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 5.2, 5.5 and 8.075.7;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement hereto shall prove to have been incorrect when made, which has a material adverse effect an Adverse Effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) Noteholders and which material adverse effect Adverse Effect continues for a period of 60 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Noteholders evidencing not less than 1050% of the aggregate unpaid principal amount of all Investor Certificates Notes (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10Classes or Tranches of Notes, not less than 50% of the aggregate unpaid principal amount of all Series to which Series, Classes or Tranches of Notes adversely affected by such representation, warranty or certification relatescertification); or;
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-winding- up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligationsobligations and such petition shall not have been dismissed within 60 days of the filing thereof; or
(e) any other Servicer Default described in any Indenture Supplement; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Noteholders evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificatesaffected Notes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee and any Series Enhancement if given by the Investor CertificateholdersNoteholders) (a “Termination Notice”), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereofAgreement; provided, however, if within 60 days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(csubsection 6.2(d) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall shall, except in the case of a Servicer Default set forth in subsection 6.1(d), grant a the Transferor the right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest interest of the Noteholders on the Distribution First Note Transfer Date in the next calendar month. If the Transferor elects not to exercise such right of first refusal, the Indenture Trustee shall assume the role of Successor Servicer. The purchase price for the Certificateholders’ Interest interest of the Noteholders shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series Outstanding Series, Class or Tranche of Notes herein or in the related applicable Indenture Supplement. The Sellers Transferor shall notify the Indenture Trustee prior to the Record Date for the Distribution First Note Transfer Date of the purchase if they are the Transferor is exercising such right of first refusal. If they exercise the Transferor exercises such right of first refusal, the Sellers Transferor shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution First Note Transfer Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders the Noteholders in accordance with Article IV and the terms of each hereof or the applicable Indenture Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.026.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “Service Transfer”); ) and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables Trust Assets provided for under this Agreement, including including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the ReceivablesTrust Assets, and in assisting the Successor Servicer. The Servicer shall within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables Trust Assets to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables Trust Assets in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 6.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing licensing, security, data protection and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of or terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Sellers, any Series Enhancer Owner Trustee and the Investor Certificateholders each Transferor with an Officer’s Certificate of the Servicer giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 1 contract
Sources: Servicing Agreement
Servicer Defaults. If any one of the following events (each, a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make deliver to the related Trustee for deposit in any payment, transfer of the Accounts or deposit the Certificate Distribution Account any required payment or to give instructions or to give notice to direct the Indenture Trustee to make such paymentany required distributions therefrom, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;
(b) which failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days three Business Days after discovery of such failure by an officer of the Servicer or after the date on which written notice of such failure, requiring the same to be remedied, shall have been given (i) to the Servicer by the Trustee, related Trustee or (ii) to the Servicer and to the Trustee Trustees by the Holders of Investor Certificates Notes, evidencing not less than 1025% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% Outstanding Amount of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07Notes;
(cb) any representation, warranty or certification made failure by the Servicer (or so long as the Servicer is AHFC, the Seller) duly to observe or to perform in any material respect any other covenants or agreements of the Servicer (or so long as the Servicer is AHFC, the Seller) set forth in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when madeother Basic Document, which has a material adverse effect on failure shall (i) materially and adversely affect the rights of the Investor Certificateholders of any Series or Noteholders and (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancementii) and which material adverse effect continues continue unremedied for a period of 60 90 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given (A) to the Servicer or the Seller (as the case may be) by the Trustee, related Trustee or (B) to the Servicer or the Seller (as the case may be), and to the related Trustee by the Holders of Investor Certificates Notes, evidencing not less than 1025% of the aggregate unpaid principal amount Outstanding Amount of all Investor Certificates the Notes;
(or, c) the occurrence of an Insolvency Event with respect to any such representation, warranty the Seller or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates)Servicer; or
(d) any failure by the Servicer shall consent to deliver any information, report, certification, attestation or accountants' letter when and as required, which continues unremedied for 10 calendar days after the appointment date on which such information, report, certification, attestation or accountants' letter was required to be delivered then, and in each and every case, other than in the case of a conservator or receiver or liquidator Servicer Default set forth in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Defaultclause (d) above, so long as the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing more not less than 5025% of the aggregate unpaid principal amount Outstanding Amount of all Investor Certificatesthe Notes (or, if the Notes have been paid in full and the Indenture has been discharged in accordance with its terms, by holders of Certificates evidencing not less than 25% of the Percentage Interests) by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee and any Series Enhancement if given by the Investor CertificateholdersNoteholders) (a “Termination Notice”), may terminate all but the rights and obligations (other than the obligations set forth in Section 6.02 that accrued on or prior to the effective date of the termination) of the Servicer under this Agreement. In the case of a Servicer Default set forth in clause (d) above, so long as the Servicer Default shall not less have been remedied, the Issuer (or the Administrator, acting on behalf of the Issuer) shall be entitled to terminate, either (i) with the Indenture Trustee's consent or (ii) in its sole discretion if a Successor Servicer (other than all the Indenture Trustee) has already been appointed, the rights and obligations of the Servicer as Servicer servicer under this Agreement and in and Agreement; provided that to the Receivables and extent that any provision of this Agreement expressly provides for the proceeds thereof; provided, however, if within 60 days survival of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate certain rights or obligations following termination of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Noticeas servicer, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest such provision shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplementgiven effect. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a Termination Notice, and on On or after the date that a Successor Servicer is appointed by the Trustee pursuant to Section 10.02specified in such written notice, all authority and power of the Servicer under this Agreement shall Agreement, whether with respect to the Notes, the Certificates or the Receivables or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer (a “Service Transfer”)as may be appointed under Section 7.02; and, without limitation, the Indenture Trustee is and the Owner Trustee are hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf for the benefit of the predecessor Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and or accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfernotice of termination, whether to complete the transfer and endorsement of the Receivables and related documents, or otherwise. The predecessor Servicer agrees to shall cooperate with the Trustee and such Successor Servicer and the Trustees in effecting the termination of the responsibilities and rights of the predecessor Servicer to conduct servicing hereunderunder this Agreement, including the transfer to such the Successor Servicer for administration by it of all authority of cash amounts that shall at the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer time be held by the predecessor Servicer for deposit, or which have been deposited by the predecessor Servicer, in the Collection Account, Accounts or which shall the Certificate Distribution Account or thereafter be received with respect to the Receivables, Receivables and in assisting all Payments Ahead that shall at that time by held by the Successor predecessor Servicer. The Servicer shall within 20 Business Days transfer its electronic records relating to All reasonable costs and expenses (including servicer conversion costs and attorneys' fees) incurred in connection with transferring the Receivables Receivable Files to the Successor Servicer in and amending this Agreement to reflect such electronic form succession as the Successor Servicer may reasonably request and shall promptly transfer pursuant to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require be paid by the predecessor Servicer to disclose to the Successor Servicer information upon presentation of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into reasonable documentation of such customary licensing costs and confidentiality agreements as the Servicer shall deem necessary to protect its interestexpenses. Notwithstanding the foregoing, a delay Any costs or expenses incurred in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute connection with a Servicer Default if such delay shall constitute an expense of administration under Title 11 of the United States Bankruptcy Code or failure could not be prevented by any other applicable Federal or State bankruptcy laws. Upon receipt of notice of the exercise occurrence of reasonable diligence by the a Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the TrusteeDefault, the Sellers, any Series Enhancer and the Investor Certificateholders with an Officer’s Certificate giving prompt Indenture Trustee shall give notice of such failure or delay by it, together with a description of its efforts so thereof to perform its obligationseach Rating Agency.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Honda Auto Receivables 2007-3 Owner Trust)
Servicer Defaults. If any one of the following events ----------------- (a “"Servicer Default”") shall occur and be continuing:: -----------------
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to make such payment, transfer the terms of this Agreement or deposit any Supplement on or before the date occurring five ten (10) Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the interests hereunder of the Investor Certificateholders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 sixty (60) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07, a Responsible Officer of the Trustee has actual knowledge of such delegation and such delegation continues unremedied for 15 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues to be incorrect in any material adverse effect continues respect for a period of 60 sixty (60) days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates); or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 sixty (60) days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificatesoutstanding Series, by written notice then given to the Servicer (and to the Trustee and any Series Enhancement Enhancer entitled thereto pursuant to the relevant Supplement if given by the Investor Certificateholders) (a “"Termination Notice”"), may terminate all but not ------------------ less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, -------- however, if within 60 sixty (60) days of receipt of a Termination Notice the ------- Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s 's Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ ' Interest on the Distribution Date in the next calendar month; provided further, however, the -------- ------- ------- foregoing right of first refusal shall not apply in the case of a Servicer Default set forth in subsection 10.01(d). The purchase price for the Certificateholders’ ' Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusaloption. If they exercise it exercises such right of first refusaloption, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City Richmond, Virginia time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a “Service Transfer”)Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-in- fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the the, purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds. The Servicer shall within 20 Business Days promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. Notwithstanding the foregoing, a any delay in or failure of performance referred to in paragraph (aunder Section 10.01(a) above for a period of 10 five (5) Business Days after the applicable grace period or under paragraph Section 10.01(b) or (c) for a period of sixty (60) days (in addition to any period provided in Section 10.01(a), (b) or (c)) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default until the expiration of such additional five (5) Business Days or sixty (60) days, respectively, if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its respective obligations in a timely manner in accordance with the terms of this Agreement and any Supplement and the Servicer shall provide the Trustee, the Sellerseach Rating Agency, any Series Enhancer entitled thereto pursuant to the relevant Supplement, each Holder of a Seller Certificate and the Investor Certificateholders with an Officer’s 's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts to so to perform its obligations.
Appears in 1 contract
Servicer Defaults. If any one of the following events (a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee to make such payment, transfer or deposit on or before the date occurring five (5) Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or givengiven by the Servicer, as the case may be, under the terms of this Agreement Agreement, the Indenture or any Indenture Supplement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement Agreement, the Indenture or any Indenture Supplement which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 sixty (60) days after the date on which notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by Holders of Investor Certificates Notes evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates Notes Outstanding (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Notes Outstanding of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 6.02, 6.05 and 8.076.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) an Adverse Effect and which material adverse effect Adverse Effect continues for a period of 60 sixty (60) days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates Notes Outstanding (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Notes Outstanding of all Series to which such representation, warranty or certification relates); or
(d) the Servicer shall consent to the appointment of a trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings Proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or an action seeking a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedingsProceedings, or the winding-up or liquidation of its affairs, shall have been entered commenced against the Servicer and such decree or order action shall have remained in force undischarged or unstayed for a period of 60 dayssixty (60) days or an order or decree providing for such relief shall have been entered; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statuteDebtor Relief Law, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing more than 50% a majority of the aggregate unpaid principal amount of all Investor CertificatesNotes Outstanding, by notice then given to the Servicer Servicer, the Transferor, and the Owner Trustee (and to the Indenture Trustee and any Series Enhancement if given by the Investor CertificateholdersNoteholders) (a “Termination Notice”), may terminate all but not less than all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination NoticeAgreement, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to Indenture and each outstanding Series in the related Indenture Supplement. The Sellers Indenture Trustee shall notify the Trustee prior each Rating Agency of any Servicer Default of which a Responsible Officer has actual knowledge and shall provide each Rating Agency with a copy of any Termination Notice given to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV Servicer and the terms of each SupplementOwner Trustee by the Indenture Trustee or received by the Indenture Trustee pursuant to this Section 8.01. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.028.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “Service Transfer”); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer. The Servicer shall within 20 twenty (20) Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. The predecessor Servicer shall be responsible for all expenses incurred in transferring the servicing duties to the Successor Servicer. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 ten (10) Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 sixty (60) Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of war, terrorism), public disorder, rebellion or sabotage, strikes, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the SellersIssuer, the Transferor and any Series Enhancer and the Investor Certificateholders with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (Compucredit Corp)
Servicer Defaults. If any one of the following events (a “"Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Trustee to make such paymentany required drawing, transfer withdrawal, or deposit payment under any Credit Enhancement on or before the date occurring five ten Business Days after the date such payment, transfer transfer, deposit withdrawal or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any SupplementAgreement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 1050% of the aggregate unpaid principal amount Investor Interest of all any Series adversely affected thereby and continues to materially adversely affect such Investor Certificates Certificateholders for such period; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7;
(or, with respect to c) any such representation, warranty or certification that does made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has a material adverse effect an the Investor Certificateholders of any Series and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not relate to all Series, 10less than 50% of the aggregate unpaid principal amount Investor Interest of all any Series adversely affected thereby and continues to which materially adversely affect such representation, warranty or certification relates)Investor Certificateholders for such period; or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the aggregate unpaid principal amount of all Aggregate Investor CertificatesInterest, by notice then given in writing to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a “"Termination Notice”"), may terminate all but not less than all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each SupplementAgreement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a “Service Transfer”)Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder including, including without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited or caused to be deposited by the Servicer, in the Collection Account, the Finance Charge Account, the Principal Account, the Excess Funding Account and any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds applicable to the Trust. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such each customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under the Credit Enhancement with respect to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (asubsection 10.1(a) above for a period of 10 Business Days after the applicable grace period or under paragraph (bin subsection 10.1(b) or (c) above for a period of 60 Business Days after the applicable grace periodDays, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Credit Enhancement Provider, the Sellers, any Series Enhancer Transferor and the Holders of Investor Certificateholders Certificates with an Officer’s 's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Dillard Asset Funding Co)
Servicer Defaults. If any one of the following events ----------------- (a “"Servicer Default”") shall occur and be continuing:: ----------------
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Trustee to make such paymentany required drawing, transfer withdrawal, or deposit payment under any Credit Enhancement on or before the date occurring five ten Business Days after the date such payment, transfer transfer, deposit withdrawal or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any SupplementAgreement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 1050% of the aggregate unpaid principal amount Investor Interest of all any Series adversely affected thereby and continues to materially adversely affect such Investor Certificates Certificateholders for such period; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7;
(or, with respect to c) any such representation, warranty or certification that does made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has a material adverse effect an the Investor Certificateholders of any Series and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not relate to all Series, 10less than 50% of the aggregate unpaid principal amount Investor Interest of all any Series adversely affected thereby and continues to which materially adversely affect such representation, warranty or certification relates)Investor Certificateholders for such period; or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities 84 or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the aggregate unpaid principal amount of all Aggregate Investor CertificatesInterest, by notice then given in writing to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a “"Termination ----------- Notice”"), may terminate all but not less than all of the rights and obligations of the Servicer ------ as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each SupplementAgreement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a “Service Transfer”)Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder including, including without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account, the Principal Account, the Excess Funding Account and any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such each customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under the Credit Enhancement with respect to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (asubsection 10.1(a) above for a period of 10 Business Days after the applicable grace period or under paragraph (bin subsection 10.1(b) or (c) above for a period of 60 Business Days after the applicable grace periodDays, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Credit Enhancement Provider, the Sellers, any Series Enhancer Transferor and the Holders of Investor Certificateholders Certificates with an Officer’s 's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Chase Manhattan Bank Usa)
Servicer Defaults. (a) If any one of the following ----------------- events (each a “"Servicer Default”") shall occur and be continuing:: ----------------
(ai) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to make such payment, transfer the terms of this Agreement or deposit any Supplement on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;
(bii) failure on the part of the Servicer to duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 30 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 1050% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 1050% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
(ciii) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, made which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall continues to be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues incorrect for a period of 60 30 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less than 1050% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 1050% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates);
(iv) an Insolvency Event shall occur with respect to the Servicer; or
(dv) if the Servicer shall consent to (if Mail-Well I Corporation) permits the appointment Consolidated Fixed Charge Coverage Ratio, calculated as of a conservator or receiver or liquidator in any insolvency, readjustment the end of debt, marshalling each fiscal quarter of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its propertycommencing with the fiscal quarter ended December 31, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises 1996, for the appointment four fiscal quarters of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability then ended to pay its debts generally as they become due, file a petition be less than 1.10 to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; 1.00. then, in the event of any Servicer Default, so long as the such Servicer Default shall not have been remedied, either the Trustee, or each Series Representative and the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor CertificatesLiquidity Agent, by notice then given to the Servicer (and to the Trustee and any Series Enhancement Enhancer entitled thereto pursuant to the relevant Supplement if given by the Investor Certificateholders) (a “"Termination Notice”"), may terminate all but not less than all the rights and obligations of the ------------------ Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c.
(b) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “Service Transfer”)Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such the Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder including, including without limitation, the transfer to such the Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account or the Canadian Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer. The Servicer shall within 20 Business Days promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, the Sellers, any Series Enhancer and the Investor Certificateholders with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligationsinterests.
Appears in 1 contract
Servicer Defaults. If any one of the following events (a “----------------- "Servicer Default”") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee to make such payment, transfer or deposit or to give notice to the Trustee as to any required drawing or payment under any Enhancement on or before the date occurring five Business Days after the date such payment, transfer transfer, deposit or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Supplement, which has a material adverse effect on the Investor Certificateholders of any Series then outstanding (which determination shall be made without regard to whether funds are then available pursuant to the amount of any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the TrusteeTrustee or the Transferor, or to the Servicer Servicer, the Transferor and the Trustee by the Holders of Investor Certificates evidencing not less Undivided Interests aggregating more than 1050% of the aggregate unpaid principal Invested Amount of any Series adversely affected thereby, and which continues to materially adversely affect the rights of the Certificateholders of any Series then outstanding (without regard to the amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); Enhancement) or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07Section 8.7; provided, however, that any such failure that relates to any particular Receivable or group of Receivables shall not constitute a Servicer Default if the Servicer has made a deposit in the Collection Account with respect to such failure in accordance with Section 3.3;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series then outstanding (without regard to the amount of any Enhancement) and which continues to be incorrect in any material respect and which continues to affect materially and adversely the rights of the Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to the amount of any Series Enhancement) and which material adverse effect continues for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the TrusteeTrustee or the Transferor, or to the Servicer Servicer, the Transferor and the Trustee by the Holders of Investor Certificates evidencing not less Undivided Interests aggregating more than 1050% of the aggregate unpaid principal amount Invested Amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates)adversely affected thereby; or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the such Servicer Default shall not have been remedied, either the Trustee, the Transferor or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the aggregate unpaid principal amount of all Investor CertificatesAggregate Invested Amount, by notice then given in writing to the Servicer (and to the Trustee and any Series Enhancement the Transferor if given by the Investor Certificateholders) (a “"Termination ----------- Notice”"), may terminate all but not less than all of the rights and obligations of the Servicer as ------ Servicer under this Agreement and in and to the Receivables and the proceeds thereof; providedthereof and appoint a new Servicer (a "Service Transfer"). The rights and ---------------- interests of the Transferor Interest will not be affected by any Service Transfer. The Trustee, however, if within 60 days of receipt of upon giving or receiving a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall immediately notify the Trustee prior to the Record Date for the Distribution Date Rating Agencies and any Enhancement Provider of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplementnotice. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a “Service Transfer”); Servicer, and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to take all reasonable actions to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Recoveries. The Servicer shall within 20 Business Days promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (aSection 10.1(a) above for a period of 10 Business Days after the applicable grace period or under paragraph (ba delay in or failure of performance referred to in Section 10.1(b) or (c) above for a period of 60 Business Days after the applicable grace period, period shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Enhancement Provider, the Sellers, any Series Enhancer Transferor and the Holders of Investor Certificateholders Certificates with an Officer’s 's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations. The Servicer shall immediately notify a Responsible Officer of the Trustee in writing of any Servicer Default.
Appears in 1 contract
Sources: Master Pooling and Servicing Agreement (Circuit City Credit Card Master Trust)
Servicer Defaults. If any one of the following events (a “Servicer Default”) shall occur and be continuing:occur: USActive 57833767.7
(a) any failure by the Servicer to make any payment, transfer or deposit into the Collection Account or Unfunded Exposure Account (including, without limitation, with respect to give instructions or to give notice to the Trustee to make such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is bifurcation and remittance of Interest Collections and Principal Collections) as required to be made or given, as the case may be, under the terms of by this Agreement or any Supplementwhich continues unremedied for a period of three (3) Business Days;
(b) any failure on the part of the Servicer duly to (i) observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or the other Transaction Documents to which the Servicer is a party (including, without limitation, any Supplement which has a material adverse effect on delegation of the Investor Certificateholders Servicer’s duties that is not permitted by Section 6.1) or (ii) comply in any material respect with the Servicing Standard regarding the servicing of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) the Collateral Portfolio and which in each case the same continues unremedied for a period of 60 thirty (30) days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Trustee, Administrative Agent or to any Lender Agent and (ii) the date on which a Responsible Officer of the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07acquires actual knowledge thereof;
(c) the failure of the Servicer to make any payment when due (after giving effect to any related grace period) under one or more agreements for borrowed money to which it is a party in an aggregate amount in excess of $10,000,000, individually or in the aggregate, or the occurrence of any event or condition that has resulted in the acceleration of such recourse debt or other obligations, whether or not waived;
(d) an Insolvency Event shall occur with respect to the Servicer;
(e) North Haven or an Affiliate thereof shall cease to be the Servicer or North Haven shall assign its rights or obligations as “Servicer” hereunder to any Person other than an Affiliate without the consent of each Lender and the Administrative Agent;
(f) the Administrative Agent reasonably determines that the Servicer has undergone a Material Adverse Effect of the type described in clauses (a) or (d) of such definition;
(g) any failure by the Servicer to deliver any required Servicing Report or other Required Reports hereunder on or before the date occurring five (5) Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement;
(h) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of $5,000,000 (net of any insurance proceeds), individually or in the aggregate, and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than sixty (60) consecutive days without a stay of execution;
(i) any Change of Control of the Servicer without the prior written consent of the Administrative Agent in its sole discretion;
(j) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement Transaction Document or in any certificate delivered pursuant to this Agreement or any Supplement Transaction Document shall prove to have been incorrect when made, which has a material adverse effect Material Adverse Effect on the rights Agent or any of the Investor Certificateholders of any Series (which determination shall Secured Parties and continues to be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues unremedied for a period of 60 30 days after the USActive 57833767.7 earlier to occur of (i) the date on which written notice thereof, of such incorrectness requiring the same to be remedied, remedied shall have been given to the Servicer by the Trustee, Administrative Agent or to any Lender Agent and (ii) the date on which a Responsible Officer of the Servicer and acquires knowledge thereof;
(k) at the Trustee by end of any fiscal quarter, North Haven fails to maintain the Holders of Investor Certificates evidencing not less Asset Coverage Ratio at greater than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect or equal to any such representation, warranty or certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates)1.50:1.00; or
(dl) the Servicer Equityholder shall consent fail to maintain (i) shareholder’s equity (determined without any deductions at the appointment end of a conservator or receiver or liquidator in any insolvency, readjustment the most recently ended fiscal quarter of debt, marshalling of assets the Equityholder and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction reflected in the premises for the appointment of a conservator Equityholder’s most recent SEC Form 10-Q or receiver or liquidator Form 10-K) in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability an amount equal to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing more than $300,000,000 plus 50% of the aggregate unpaid principal amount net proceeds of all Investor Certificatesthe sale of equity interests in the Equityholder received by the Equityholder after the Closing Date and (ii) its status as a “business development company” under the 1940 Act; then notwithstanding anything herein to the contrary, the Administrative Agent, by written notice then given to the Servicer (and with a copy to the Trustee Collateral Custodian and any Series Enhancement if given by the Investor CertificateholdersCollateral Agent) (a “Servicer Termination Notice”), may terminate all but not less than all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “Service Transfer”); and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer. The Servicer shall within 20 Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, the Sellers, any Series Enhancer and the Investor Certificateholders with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 1 contract
Sources: Loan and Servicing Agreement (North Haven Private Income Fund LLC)
Servicer Defaults. If any one of the following events (a “Servicer Default”"SERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to make such payment, transfer this Agreement or deposit any Supplement on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement;
(b) failure on the part of the Servicer to duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the interests hereunder of the Investor Certificateholders Holders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 1025% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 1025% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 SECTIONS 8.2 and 8.078.7, a Responsible Officer of Trustee has actual knowledge of such delegation and such delegation continues unremedied for 15 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to Servicer by Trustee, or to Servicer and Trustee by Holders of Investor Certificates evidencing not less than 25% of the aggregate unpaid principal amount of all Investor Certificates;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders Holders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues to be incorrect in any material adverse effect continues respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less than 1025% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, 1025% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates); or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its propertyfail generally to, or admit in writing its inability to, pay its debts as they become due; or a decree or order of proceeding shall have been instituted in a court or agency or supervisory authority having jurisdiction in the premises seeking a decree or order for relief in respect of Servicer in an involuntary case under any Debtor Relief Law, or for the appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or receiver other similar official of such Person or liquidator in for any insolvency, readjustment substantial part of debt, marshalling of assets and liabilities or similar proceedingsits property, or for the winding-up or liquidation of its affairsaffairs and, if instituted against Servicer, any such proceeding shall have been entered against the Servicer and such decree or order shall have remained in force undischarged continue undismissed or unstayed and in effect, for a period of 60 consecutive days, or any of the actions sought in such proceeding shall occur; or the Servicer shall admit commencement by Servicer, of a voluntary case under any Debtor Relief Law, or such Person's consent to the entry of an order for relief in writing an involuntary case under any Debtor Relief Law, or consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or other similar official of such Person or for any substantial part of its inability to pay its debts generally as they become dueproperty, file a petition to take advantage of or any applicable insolvency or reorganization statute, make any general assignment for the benefit of its creditors creditors; or voluntarily suspend payment such Person or any Subsidiary of its obligationssuch Person shall have taken any corporate action in furtherance of any of the foregoing actions; then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Trustee, Trustee or the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificates, by notice then given to the Servicer (and to the Trustee and any Series Enhancement Provider entitled thereto pursuant to the relevant Supplement if given by the Investor CertificateholdersHolders) (a “Termination "TERMINATION Notice”"), may terminate all but not less than all the rights and obligations of the Servicer Servicer, as Servicer Servicer, under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Trustee pursuant to Section 10.02SECTION 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a “Service Transfer”"SERVICE TRANSFER"); and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such the Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including the transfer to such the Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor ServicerServicer and in enforcing all rights to Insurance Proceeds. The Servicer shall within 20 Business Days promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section SECTION 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary appropriate to protect its interestinterests. Notwithstanding the foregoing, a any delay in or failure of performance referred to in paragraph (aunder SECTION 10.1(a) above for a period of 10 five Business Days after the applicable grace period or under paragraph SECTION 10.1(b) or (c) for a period of 60 days (in addition to any period provided in SECTION 10.1(a), (b) or (c)) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default until the expiration of such additional five Business Days or 60 days, respectively, if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism)war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using the obligation to use its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the any Supplement and Servicer shall provide the Trustee, the Sellerseach Rating Agency, any Series Enhancer Enhancement Provider entitled thereto pursuant to the relevant Supplement, Transferor and the Investor Certificateholders Holders with an Officer’s 's Certificate giving prompt immediate notice of such failure or delay by it, together with a description of its efforts to so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (World Financial Network Credit Card Master Trust)