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 (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement; (b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j)), which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure; (c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 less than 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby; or (d) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoing; then, so long as 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 Certificateholders Ownership Interests, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor 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 (A I 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 (other than with respect to any Credit Balances) or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Indenture Trustee to make any required drawingsuch payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this AgreementAgreement 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 (other than those set forth in subsections 3.03(g), (i) and (j)), which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) an Adverse Effect and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by Holders of Notes evidencing 10% or more of the aggregate unpaid principal amount of all Notes (or, with respect to any such failure that does not relate to all Series, 10% or more 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 5.02 and 5.07;
(c) any representation, warranty or certification 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 an Adverse Effect on the rights of the Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which 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 Owner Trustee or the Indenture Trustee, or to the Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 5010% or more of the Certificateholders Ownership Interests aggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% or more of the aggregate unpaid principal amount of all Series adversely affected therebyto which such representation, warranty or certification relates); or
(d) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law for Servicer shall consent to the appointment of a conservator bankruptcy trustee, conservator, receiver, liquidator or receiver or liquidator similar official in any bankruptcy proceeding or 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 and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or 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, voluntary liquidation 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, conservator, receiver, liquidator or similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its propertyaffairs, shall have been entered against the Servicer; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action obligations; then, in furtherance the event of any of the foregoing; thenServicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating more than 50% of the Aggregate Certificateholders Ownership Interestsaggregate unpaid principal amount of all Notes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "“Termination Notice"” ), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement Agreement; 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 subsection 7.02(c) to act as a Successor Servicer and in and receives an Officer’s Certificate of the Servicer to the Receivableseffect 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 Transferor which would permit the Transferor at its option to acquire the Notes on the Distribution Date in the next calendar month. Any determination that an inaccuracy or other event, which with notice and/or The price for the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates Notes shall be made without regard equal to the availability sum of any Credit Enhancement or similar credit support device the amounts specified therefor with respect to each outstanding Series in the related Indenture Supplement. The Transferor shall notify the Indenture Trustee prior to the Record Date for the Distribution Date of the acquisition if it is exercising such Seriesright of first refusal. If the Transferor exercises such right of first refusal, the Transferor shall deposit the price into the Collection Account not later than 1:00 p.m., New York City time, on such Distribution Date in immediately available funds. The price shall be allocated and distributed to Noteholders in accordance with the terms of the Indenture and each Indenture Supplement. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been is 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 ServicerServicer (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 transfer of servicing rights and obligationsService 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 includinghereunder, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, including, without limitation, 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 Principal Account, and any Series Account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustServicer. The Servicer shall promptly within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 interests. Subject The Servicer shall pay to the immediately preceding sentence, the Servicer agrees to grant to the Indenture Trustee and any Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned reasonable transition expenses incurred by such person and the Servicer and which is used by the Servicer agents in connection with the servicing any transition of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 ServicerServicing. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(aparagraph (a) above for a period of 10 Business Days after the applicable grace period or under subsection 10.01(bparagraph (b) or (c) above for a period of 60 Business DaysDays 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, acts of terrorism, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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, any Credit Enhancement ProviderOwner Trustee, the each Transferor and the Holders of Investor Certificates any Series Enhancer 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: Transfer and Servicing Agreement (HSBC Private Label Credit Card Master Note Trust (Usa) I)
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 (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV the terms of this Agreement or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement Supplement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this AgreementAgreement 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 (other than those set forth in subsections 3.03(g), (i) and (j)), 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 the availability of any Credit Enhancement or similar credit support device) Class and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 more than 50% of the Certificateholders Ownership Interests Aggregate Invested Amount (or, with respect to any such failure that does not relate to all Series, 50% of any the aggregate Invested Amount of all Series adversely affected thereby and continues to materially adversely affect which such Investor Certificateholders for such periodfailure relates); or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section Sections 8.02 or 8.07; provided, however, that failure on the part a Responsible Officer of the Servicer duly to observe or perform in any respect any covenants or agreements Trustee has actual knowledge of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) such delegation and which such delegation continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 unremedied for 15 days after the date (following such removal) on which written notice of such continuing material adverse effect thereof, requiring the same to 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 Undivided Interests aggregating not less more than 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failureAggregate Invested Amount;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) Class 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 less more than 50% of the Certificateholders Ownership Interests Aggregate Invested Amount (or, with respect to any such representation, warranty or certification that does not relate to all Series, 50% of any the Aggregate Invested Amount of all Series adversely affected therebyto which such representation, warranty or certification relates); or
(d) the Servicer shall consent to the appointment of a conservator 75 84 or receiver or liquidator in any insolvency, readjustment of debt, 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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action obligations; then, in furtherance the event of any of the foregoing; thenServicer Default, so long as such the 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 Certificateholders Ownership InterestsInvested Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement Agreement; 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 subsection 10.02(c) to act as a Successor Servicer and in and receives an Officer's Certificate of the Servicer to the Receivableseffect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall offer the Transferor the right at its option to purchase the Certificateholders' Interest on the Distribution Date next succeeding 60 days after the receipt by the Servicer of a Termination Notice. Any determination that an inaccuracy or other event, which with notice and/or The purchase price for the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates Certificateholders' Interest shall be made without regard equal to the availability sum of any Credit Enhancement or similar credit support device the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Transferor shall notify the Trustee in writing prior to the Record Date for the Distribution Date of the purchase if it is exercising such Seriesoption. If the Transferor exercises such option, the Transferor shall 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 such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer of servicing rights and obligationsrights. 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 Trust Assets provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor 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
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 (other than with respect to any Credit Balances) or to give notice or instructions or notice to the Trustee pursuant to Article IV or to instruct the Indenture Trustee to make any required drawingwithdrawal or payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or drawing 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, 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 (other than those set forth in subsections 3.03(g), (i) and (j)), 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 the availability of any Credit Enhancement Series, Class or similar credit support device) Tranche and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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, 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 Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests aggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches of Notes, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches of Notes to which such failure related); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06;
(c) any representation, warranty or certification 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 an Adverse Effect on the rights of the Noteholders of any Series adversely affected thereby; Series, Class or Tranche and which 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, the Owner Trustee and the Indenture Trustee by the Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches of Notes, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches of Notes to which such representation, warranty or certification relates);
(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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take obligations; or
(e) any corporate action other Servicer Default described in furtherance of any of the foregoingIndenture Supplement; then, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating more than 50% of the Aggregate Certificateholders Ownership Interestsaggregate unpaid principal amount of all affected Notes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "“Termination Notice"”), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement Agreement; 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 subsection 10.02(a) to act as a Successor Servicer and in and receives an Officer’s Certificate of the Servicer to the Receivables. Any determination effect that an inaccuracy or other event, the Servicer cannot in good faith cure the Servicer Default which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard gave rise to the availability Termination Notice, the Indenture Trustee shall assume the role of any Credit Enhancement or similar credit support device with respect to such SeriesSuccessor Servicer. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been 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; 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 transfer of servicing rights and obligationsService 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 includinghereunder, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, including, without limitation, 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 Principal Account, and any Series Account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable Insurance Proceeds and Interchange (if any) applicable to the TrustIssuing Entity. The Servicer shall promptly within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(a(a) above for a period of 10 Business Days after the applicable grace period or under subsection 10.01(b(b) or (c) above for a period of 60 Business DaysDays 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, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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, any Credit Enhancement Provider, Indenture Trustee or the Owner Trustee and the Transferor and the Holders of Investor 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: Transfer and Servicing Agreement (Wachovia Card Receivables 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 (other than with respect to any Credit Balances) or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Indenture Trustee to make any required drawingsuch payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five (5) Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing 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;
(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 (other than those set forth in subsections 3.03(g), (i) and (j)), which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) an Adverse Effect and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), sixty (i60) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by Holders of Notes evidencing not less than 10% of the aggregate unpaid principal amount of all 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 or delegate its duties under this Agreement, except as permitted by Sections 5.02 and 5.07;
(c) any representation, warranty or certification 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 an Adverse Effect on the rights of the Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which Adverse Effect continues for a period of 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 or the Indenture Trustee, or to the Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 5010% of the Certificateholders Ownership Interests aggregate unpaid principal amount of all 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 adversely affected thereby; orto which such representation, warranty or certification relates);
(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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 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 (60) days; or 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take obligations; or
(e) any corporate action other Servicer Default described in furtherance the related Indenture Supplement; then, in the event of any of the foregoing; thenServicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating more than 50% of the Aggregate Certificateholders Ownership Interestsaggregate unpaid principal amount of all Notes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "“Termination Notice"”), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement Agreement; provided, however, if within sixty (60) days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with subsection 7.02(c) to act as a Successor Servicer and in and receives an Officer’s Certificate of the Servicer to the Receivables. Any determination effect that an inaccuracy the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall grant a purchase option and right of first refusal to the Transferor which would permit the Transferor at its option to redeem or other eventacquire the Notes on the Distribution Date in the next calendar month; provided further, which with notice and/or however, the passage foregoing purchase option or right of time would constitute first refusal shall not apply in the case of a Servicer Default, would have a material adverse effect on Holders of one Default set forth in subsection 7.01(d). The price to redeem or more Series of Certificates acquire the Notes shall be made without regard equal to the availability sum of any Credit Enhancement or similar credit support device the amounts specified therefor with respect to each outstanding Series in the related Indenture Supplement. The Transferor shall notify the Indenture Trustee in writing prior to the Record Date for the Distribution Date of the acquisition if it is exercising such Seriespurchase option and right of first refusal. If the Transferor exercises such purchase option or right of first refusal, the Transferor shall deposit the price into the Collection Account not later than 1:00 p.m., New York City time, on such Distribution Date in immediately available funds. The price shall be allocated and distributed to Noteholders in accordance with the terms of the Indenture and each Indenture Supplement. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been is 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 ServicerServicer (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 transfer of servicing rights and obligationsService 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 includinghereunder, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, including, without limitation, 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 Principal Account, and any Series Account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustServicer. The Servicer shall promptly within twenty (20) Business Days transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(aparagraph (a) above for a period of 10 ten (10) Business Days after the applicable grace period or under subsection 10.01(bparagraph (b) or (c) above for a period of 60 sixty (60) Business DaysDays 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, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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, any Credit Enhancement ProviderOwner Trustee, the each Transferor and the Holders of Investor Certificates any Series Enhancer 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: Transfer and Servicing Agreement (Signet Jewelers 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 (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this 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 otherwise becoming aware of such failure;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j))Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests Invested Amount of any Series materially adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 less than 50% of the Certificateholders Ownership Interests Invested Amount of any Series materially adversely affected therebythereby and continues to materially adversely affect such Investor Certificateholders for such period; or
(d) the Servicer shall consent to the appointment of a 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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoingobligations; then, so long as 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 Certificateholders Ownership InterestsInvested Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such SeriesAgreement. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, 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 Excess Funding Account, the Interest Funding Account or the Principal Account, and any Series Account, or which shall thereafter be received with respect to the Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustReceivables. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 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 reasonably necessary to protect its interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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. 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 subsection 10.01(a10.1(a) for a period of 10 five Business Days or under subsection 10.01(b10.1(b) or (c) for a period of 60 Business Daysdays, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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 timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Credit Enhancement Provider, the Transferor and the Holders of Investor 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 (Green Tree Financial 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 (other than with respect to any Credit Balances) or to give instructions instructions, or to give notice to Lender, Lockbox Bank or the Trustee pursuant to Article IV or to instruct bank holding the Trustee GreenSky® Program ACH Account to make any required drawingsuch payment, withdrawaltransfer or deposit, or payment under any Credit Enhancement on or before the date occurring five three (3) Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Servicing Agreement;
(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 Servicing Agreement (other than those set forth or in subsections 3.03(g), (i) and (j)), which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) Origination Agreement and which continues unremedied for a period of 60 ten (10) days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 Lender;
(c) any representation, warranty, covenant or certification made by Servicer in this Servicing Agreement, the TrusteeOrigination Agreement, or in any certificate delivered pursuant to this Servicing Agreement or the Servicer Origination Agreement shall prove to have been materially incorrect when made, which has a materially adverse effect on the Loans taken as a whole or on a Loan individually and which materially adverse effect continues for a period of thirty (30) days after the Trustee date on which notice thereof, requiring the same to be remedied, shall have been given to Lender by the Holders of Investor Certificates evidencing Undivided Interests aggregating Servicer, unless such incorrect representation, warranty, covenant or certification cannot less than 50% of the Certificateholders Ownership Interests of any Series adversely affected therebybe remedied; or
(d) 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 Servicer or of or relating to all or substantially all its Assets, or an action seeking a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 for 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action obligations; then, in furtherance the event of any of the foregoing; thenServicer Default, so long as such Servicer Default shall not have been timely remedied, either the Trusteeunless such Servicer Default cannot be remedied, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Aggregate Certificateholders Ownership InterestsLender, by notice then given in writing to the Servicer (and to the Trustee 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 (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Servicing Agreement, which, for the avoidance of doubt, shall not terminate Servicer’s right to receive the Performance Fee; provided, however, that at Lender’s sole option, this Servicing Agreement shall remain in full force and in and effect with respect to all, or a portion of, such Loans originated prior to the Receivables. Any determination date of the Termination Notice that an inaccuracy or other eventServicer is servicing at the time of the Termination Notice, in which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse event this Servicing Agreement shall remain in full force and effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such SeriesLoans only. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Trustee Lender pursuant to Section 10.024.02, all authority and power of the Servicer under this Agreement Servicing Agreement, except for the right to receive payments hereunder reduced by the servicing fee paid by Lender to the Successor Servicer (or, if Lender is the Successor Servicer, by the reasonable amount that Lender would have to pay to an independent Successor Servicer in an arms’ length transaction), shall pass to and be vested in the Successor ServicerServicer (a “Service Transfer”); and, without limitation, the Trustee Lender 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 transfer of servicing rights and obligationsService Transfer. The Servicer agrees to cooperate with the Trustee Lender and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder includinghereunder, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Loans provided for under this Servicing Agreement, including, without limitation, 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 Principal Account, and any Series Account, or which shall thereafter be received by Servicer with respect to the Trust AssetsLoans, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustServicer. The Servicer shall promptly also complete such transfer of its rights under the Program Agreements as may be necessary for the Successor Servicer to adequately perform its duties and obligations under this Servicing Agreement; but otherwise, Servicer shall remain obligated under and shall continue to perform its duties and obligations under the Program Agreements. Servicer shall within ten (10) Business Days transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 and enforcement of the Trust Assets Loans 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 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, shall not constitute a Servicer Default (i) under paragraph (a) above for a period of ten (10) Business Days after the applicable grace period or (ii) under paragraph (b) or (c) above for a period of fifteen (15) Business Days after the applicable grace period, 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, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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 Servicing Agreement and the Servicer shall provide the Trustee, any Credit Enhancement Provider, the Transferor and the Holders of Investor Certificates Lender 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: Servicing Agreement (GreenSky, Inc.)
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 (other than with respect to any Credit Balances) or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Indenture Trustee to make any required drawingsuch payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing 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 (other than those set forth in subsections 3.03(g), (i) that has an Adverse Effect and (j)), which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 Undivided Interests aggregating not less than 5010% of the Certificateholders Ownership Interests aggregate unpaid principal amount of all 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 adversely affected thereby and continues to materially adversely affect which such Investor Certificateholders for such periodfailure relates); or the Servicer shall delegate delegates or assign assigns its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(gSections 3.01(a), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 5.02 and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure6.02;
(ciii) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer Report) 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 Investor Certificateholders rights of the Noteholders of any Series (which determination shall will be made without regard to the availability of whether funds are then available pursuant to any Credit Enhancement or similar credit support deviceSeries Enhancement) and which such Adverse Effect continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failurethereof, 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 Undivided Interests aggregating not less than 5010% of the Certificateholders Ownership Interests aggregate unpaid principal amount of all 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 adversely affected therebyto which such representation, warranty or certification relates); or
(div) the Servicer 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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 for 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an makes any assignment for the benefit of its creditors or voluntarily suspend suspends payment of its obligations or take any corporate action obligations; then, in furtherance the event of any of the foregoing; thenServicer Default, so long as such the Servicer Default shall has not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating more than 50% of the Aggregate Certificateholders Ownership Interestsaggregate unpaid principal amount of all Notes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "“Termination Notice"”), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement Agreement; 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 6.02(c) to act as a Successor Servicer and in and receives an Officer’s Certificate of the Servicer to the Receivables. Any determination effect that an inaccuracy or other event, the Servicer cannot in good faith cure the Servicer Default which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard gave rise to the availability Termination Notice, the Indenture Trustee will grant a right of any Credit Enhancement or similar credit support device first refusal to the Transferor permitting the Transferor at its option to acquire the Noteholders’ Collateral serviced by the Servicer on the Distribution Date in the next calendar month. The price for the Noteholders’ Collateral will be equal to the sum of the Reassignment Amounts with respect to each outstanding Series in the related Indenture Supplement. The Transferor will notify the Indenture Trustee prior to the Record Date (as defined in the Indenture) for the Distribution Date of the acquisition if it is exercising such Seriesright of first refusal. If the Transferor exercises such right of first refusal, the Transferor will deposit the price into the Collection Account no later than 1:00 p.m., New York City time, on such Distribution Date in immediately available funds. The price will be allocated and distributed to the Noteholders on such Distribution Date in accordance with the Indenture and each Indenture Supplement in payment of their Notes and will result in a corresponding increase in the Transferor Interest.
(b) After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been 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 ServicerServicer (a "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 transfer of servicing rights and obligationsServicing 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 includinghereunder, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, including, without limitation, 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, the Finance Charge Account, the Principal Account, and any Series Account, or which shall that thereafter be are received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustServicer. The Servicer shall promptly will within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets Receivables in the manner and at such times as the Successor Servicer shall reasonably requestrequests. To the extent that compliance with this Section 10.01 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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. .
(c) Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(aclause (i) of Section 6.01(a) for a period of 10 ten Business Days after the applicable grace period or under subsection 10.01(bclause (ii) or (ciii) of Section 6.01(a) for a period of 60 Business DaysDays 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, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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, any Credit Enhancement Providerthe Owner Trustee, the Transferor and the Holders of Investor Certificates any Series Enhancer 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: Transfer and Servicing Agreement (Ford Credit Floorplan 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 (other than with respect to any Credit Balances) or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Indenture Trustee to make any required drawingsuch payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five (5) Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing 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;
(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 (other than those set forth in subsections 3.03(g), (i) and (j)), which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) an Adverse Effect and which continues unremedied for a period of 60 sixty (60) days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by Holders of Notes evidencing not less than 10% of the aggregate unpaid principal amount of all 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 or delegate its duties under this Agreement, except as permitted by Sections 5.02 and 5.07;
(c) any representation, warranty or certification 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 an Adverse Effect on the rights of the Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which Adverse Effect continues for a period of 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, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 5010% of the Certificateholders Ownership Interests aggregate unpaid principal amount of all 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 adversely affected thereby; orto which such representation, warranty or certification relates);
(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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 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 (60) days; or 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take obligations; or
(e) any corporate action other Servicer Default described in furtherance the related Indenture Supplement. Then, in the event of any of the foregoing; thenServicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating more than 50% of the Aggregate Certificateholders Ownership Interestsaggregate unpaid principal amount of all Notes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "Termination Notice"), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement Agreement; provided, however, if within sixty (60) days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with subsection 7.02(c) to act as a Successor Servicer and in and receives an Officer's Certificate of the Servicer to the Receivableseffect 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 Transferor which would permit the Transferor at its option to acquire the Noteholders' Interest on the Payment Date in the next calendar month. Any determination that an inaccuracy or other event, which with notice and/or The price for the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates Noteholders' Interest shall be made without regard equal to the availability sum of any Credit Enhancement or similar credit support device the amounts specified therefor with respect to each outstanding Series in the related Indenture Supplement. The Transferor shall notify the Indenture Trustee prior to the Record Date for the Payment Date of the acquisition if it is exercising such Seriesright of first refusal. If the Transferor exercises such right of first refusal, the Transferor shall deposit the price into the Collection Account not later than 1:00 p.m., New York City time, on such Payment Date in immediately available funds. The price shall be allocated and distributed to Noteholders in accordance with the terms of the Indenture and each Indenture Supplement. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been is 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 ServicerServicer (a "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 transfer of servicing rights and obligationsServicing 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 includinghereunder, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, including, without limitation, 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 Principal Account, and any Series Account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustServicer. The Servicer shall promptly within twenty (20) Business Days transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(aparagraph (a) above for a period of 10 ten (10) Business Days after the applicable grace period or under subsection 10.01(bparagraph (b) or (c) above for a period of 60 sixty (60) Business DaysDays 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, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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, any Credit Enhancement ProviderOwner Trustee, the each Transferor and the Holders of Investor Certificates any Series Enhancer 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: Transfer and Servicing Agreement (Advanta Business Recievables Corp)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuingcontinuing with respect to the Servicer:
(a) any the failure by the Servicer to make any payment, transfer or deposit into the Trust (other than with respect to or into any Credit BalancesSeries Account) or to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing or such instruction or notice 'SS' 10.01 deposit is required to be made or given, as the case may be, under the terms of this Agreement, which failure is not cured within five (5) Business Days following notice thereof from the Trustee;
(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 BCRC 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 respect any other covenants or agreements of the Servicer set forth in this Agreement (other than with respect to those set forth specified in subsections 3.03(gclause (b) above and with respect to clauses (vii), (iviii) and (j))ix) under Section 3.03(a) hereof, to the extent the terms of Section 3.03(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 or the availability of any Credit Enhancement or similar credit support device) Variable Funding Certificateholder and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), thirty (i30) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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;
(d) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made and which continues to be incorrect in any material respect for a period of sixty (60) days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer and by the Trustee by and as a result of which the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% interests of the Certificateholders Ownership Interests or the Variable Funding Certificateholder are materially and adversely affected; provided, however, that a "Servicer Default" shall not be deemed to have occurred if BCRC shall have repurchased the related Receivables or, if applicable, all of any Series adversely affected therebythe Receivables during such period in accordance with the provisions of this Agreement; or
(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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 (60) days; or 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or the Servicer shall admit in writing its 'SS' 10.01 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance obligations. In the event of any of the foregoing; thenServicer Default, so long as such 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 Certificateholders Ownership Interests, by notice then given in writing to the Servicer (and to the Trustee 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 (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or Receivables and the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Seriesproceeds thereof. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.0210.02 hereof, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer; 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 transfer of servicing rights and obligationsService Transfer; provided, however, that in no event shall the Servicer incur any liability for any such action taken 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 includinghereunder, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, including, without limitation, 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 Principal Account, and any Series Account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustServicer. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 Servicerinterest. Notwithstanding the foregoing, a delay in or failure of performance referred to in under subsection 10.01(a(a) of this Section 10.01 for a period of 10 up to ten (10) Business Days after the applicable grace period or a delay in or failure of performance (or the continuance of any such delay or failure) under subsection 10.01(b(b), (c) or (cd) of this Section 10.01 for a period of 60 up to sixty (60) Business Days, 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 'SS' 10.01 continuance was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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 Credit Enhancement Provider, the Transferor Providers and the Holders of Investor Certificates Depositor with an Officer's Officers' 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 1 contract
Sources: Pooling and Servicing Agreement (Bombardier Receivables Master Trust I)
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 (other than with respect to any Credit Balances) or to give notice or instructions or notice to the Trustee pursuant to Article IV or to instruct the Indenture Trustee to make any required drawingwithdrawal or payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or drawing 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, 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 (other than those set forth in subsections 3.03(g), (i) and (j)), 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 the availability of any Credit Enhancement Series, Class or similar credit support device) Tranche and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer Servicer, the Owner Trustee, the Indenture Trustee and the Trustee applicable Collateral Agent by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests aggregate unpaid principal amount of all Series, Classes or Tranches of Notes sustaining such Adverse Effect; or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06;
(c) any representation, warranty or certification 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 an Adverse Effect on the rights of the Noteholders of any Series adversely affected thereby; orSeries, Class or Tranche and which 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 applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches of Notes to which such representation, warranty or certification relates;
(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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take obligations; or
(e) any corporate action other Servicer Default described in furtherance of any of the foregoingIndenture Supplement; then, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating more than 50% of the Aggregate Certificateholders Ownership Interestsaggregate unpaid principal amount of all affected Notes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "“Termination Notice"”), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement Agreement; 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 subsection 10.02(a) to act as a Successor Servicer and in and receives an Officer’s Certificate of the Servicer to the Receivables. Any determination effect that an inaccuracy or other event, the Servicer cannot in good faith cure the Servicer Default which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard gave rise to the availability Termination Notice, the Indenture Trustee shall assume the role of any Credit Enhancement or similar credit support device with respect to such SeriesSuccessor Servicer. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been 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; 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 transfer of servicing rights and obligationsService 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 includinghereunder, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Collateral provided for under this Agreement, including, without limitation, 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, Account for the Finance Charge Account, the Principal Account, and any Series Accountapplicable Asset Pool, or which shall thereafter be received with respect to the Trust AssetsCollateral, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall promptly within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets Collateral 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(aparagraph (a) above for a period of 10 Business Days after the applicable grace period or under subsection 10.01(bparagraph (b) or (c) above for a period of 60 Business DaysDays 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, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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, any Credit Enhancement Providerthe Owner Trustee, the applicable Collateral Agent and each Transferor and the Holders of Investor 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: Transfer 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 (other than with respect to any Credit Balances) or to give notice or instructions or notice to the Trustee pursuant to Article IV or to instruct the Indenture Trustee to make any required drawingwithdrawal or payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or drawing 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, 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 (other than those set forth in subsections 3.03(g), (i) and (j)), 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 the availability of any Credit Enhancement Series, Class or similar credit support device) Tranche and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer Servicer, the Owner Trustee, the Indenture Trustee and the Trustee applicable Collateral Agent by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests aggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06;
(c) any representation, warranty or certification 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 an Adverse Effect on the rights of the Noteholders of any Series adversely affected thereby; Series, Class or Tranche and which 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 applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take obligations; or
(e) any corporate action in furtherance of any of the foregoing; then, so long as such other 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 Certificateholders Ownership Interests, by notice then given described in writing any Indenture Supplement.
(a) to the act as a Successor Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations receives an Officer's Certificate of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination effect that an inaccuracy or other event, the Servicer cannot in good faith cure the Servicer Default which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard gave rise to the availability Termination Notice, the Indenture Trustee shall assume the role of any Credit Enhancement or similar credit support device with respect to such SeriesSuccessor Servicer. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been 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; 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 transfer of servicing rights and obligationsService 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 includinghereunder, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Collateral provided for under this Agreement, 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, Account for the Finance Charge Account, the Principal Account, and any Series Accountapplicable Asset Pool, or which shall thereafter be received with respect to the Trust AssetsCollateral, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall promptly within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets Collateral 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(aparagraph (a) above for a period of 10 Business Days after the applicable grace period or under subsection 10.01(bparagraph (b) or (c) above for a period of 60 Business DaysDays 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, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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, any Credit Enhancement Providerthe Owner Trustee, the applicable Collateral Agent and each Transferor and the Holders of Investor 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: Transfer and Servicing Agreement (Bank One Delaware National Association)
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 (other than with respect to any Credit Balances) or to give instructions or to give notice to the Trustee pursuant to Article IV Lender or to instruct the Trustee Lockbox Bank to make any required drawingsuch payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five three (3) Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Servicing Agreement or the Origination Agreement;
(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 Servicing Agreement (other than those set forth or in subsections 3.03(g), (i) and (j)), which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) Origination Agreement and which continues unremedied for a period of 60 twenty (20) days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 Lender; or Servicer shall assign or delegate its duties under this Servicing Agreement, except as permitted by Section 7.05;
(c) any representation, warranty or certification made by Servicer in this Servicing Agreement, the TrusteeOrigination Agreement, or in any certificate delivered pursuant to this Servicing Agreement or the Origination Agreement shall prove to have been materially incorrect when made, which, if capable of being remedied, continues for a period of twenty (20) days after the date on which notice thereof, requiring the same to be remedied, shall have been given to Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby; orLender;
(d) 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 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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 for the winding-up or liquidation of its or any of its Affiliates 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoingobligations; then, so long as such in the event of any Servicer Default shall not have been remediedDefault, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Aggregate Certificateholders Ownership Interests, Lender by notice then given in writing to the Servicer (and to the Trustee 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 (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Servicing Agreement and appoint a Successor Servicer; provided, however, that, at Lender’s sole option, this Servicing Agreement shall remain in full force and effect with respect to all, or a portion of, such Loans originated prior to the Receivables. Any determination date of the Termination Notice that an inaccuracy or other eventServicer is servicing at the time of the Termination Notice, in which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse event this Servicing Agreement shall remain in full force and effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such SeriesLoans only. From and after the delivery of the Termination Notice, the Performance Fee and Servicing Fee due to Servicer under Article III shall be reduced by (i) the commercially reasonable servicing fee in accordance with Section 4.02(b) of this Servicing Agreement paid by Lender to the Successor Servicer plus (ii) all reasonably foreseeable damages (including all reasonable out-of-pocket costs and expenses (including attorneys’ fees)) incurred by Lender by reason of such Servicer Default (the amounts described in this clause (ii) referred to as “Ancillary Lender Damages”), but the remainder of the Performance Fee and Servicing Fee (in the case of the Servicing Fee, calculated only with respect to then outstanding Loans actually serviced by the Servicer) shall be paid to Servicer as contemplated by Article III. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Trustee Lender pursuant to Section 10.024.02, all authority and power of the Servicer under this Agreement Servicing Agreement, except for the right to receive payment under Section 4.02(b) reduced by (i) the servicing fee paid by Lender to the Successor Servicer (or, if Lender is the Successor Servicer, by the reasonable amount that Lender would have to pay to an independent Successor Servicer in an arms’ length transaction), shall pass to and be vested in the Successor ServicerServicer (a “Service Transfer”) plus (ii) all other Ancillary Lender Damages; and, without limitation, the Trustee Lender 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 transfer of servicing rights and obligationsService Transfer. The Servicer agrees to cooperate with the Trustee Lender and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder includinghereunder, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Loans provided for under this Servicing Agreement, including, without limitation, 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, Servicer in the Collection Account, the Finance Charge Account, the Principal Account, and any Series AccountLockbox, or which shall thereafter be received with respect to the Trust AssetsLoans, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustServicer. The Servicer shall promptly also complete such transfer of its rights under the Program Agreements as may be necessary for the Successor Servicer to adequately perform its duties and obligations under this Servicing Agreement; but otherwise, Servicer shall remain obligated under and shall continue to perform its duties and obligations under the Program Agreements. Servicer shall within ten (10) Business Days transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 and enforcement of the Trust Assets Loans in the manner and at such times as the Successor Servicer shall reasonably request. The 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 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, shall not constitute a Servicer Default (i) under paragraph (a) above for a period of ten (10) Business Days after the applicable grace period or (ii) under paragraph (b) or (c) above for a period of fifteen (15) Business Days after the applicable grace period, 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, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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 Servicing Agreement and the Servicer shall provide the Trustee, any Credit Enhancement Provider, the Transferor and the Holders of Investor Certificates Lender 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: Servicing Agreement (GreenSky, 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 (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, ---------- withdrawal, or payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit, deposit withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j))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 available to the availability Certificateholders of any Credit Enhancement or similar credit support deviceSeries under any applicable Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by (i) the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests Investor Interest of any Series adversely affected thereby or (ii) to the extent provided in any Supplement by the related Enhancement Provider, and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.078.7; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;-----------
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are available to the availability Certificateholders of any Credit Enhancement or similar credit support deviceSeries under any applicable Enhancement) 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 (i) the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests Investor Interest of any Series adversely affected therebythereby or (ii) to the extent provided in any Supplement by the related Enhancement Provider, and continues to materially adversely affect such 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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoingobligations; then, so long as 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 Certificateholders Ownership InterestsInvestor Interest, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the ------------------ rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such SeriesAgreement. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, 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 Excess Funding Account, and any Series Account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries and Interchange allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 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 reasonably necessary to protect its interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferabletransferrable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans Accounts and the related Receivables; provided, however, that such software shall be used by the -------- ------- Successor Servicer solely for the purposes of servicing the Trust AssetsAccounts and the Receivables. 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 subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor 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
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 (other than with respect to any Credit Balances) or to give instructions advice or notice to the Receivables Trustee pursuant to Article IV an agreed schedule of collections and allocations or to instruct advise the Receivables Trustee to make any required drawing, withdrawal, withdrawal or payment pursuant to the Relevant Documents including under the documents governing any Credit Enhancement on or before the date occurring five (5) Business Days after the date such payment, transfer, depositdrawing, withdrawal or drawing payment or such instruction advice or notice is required to be made or given, as the case may be, under the terms of this AgreementDeed or any Relevant Document;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (Deed or any other than those set forth in subsections 3.03(g), (i) and (j)), Relevant Document which has a material adverse effect Material Adverse Effect on the interests of the Investor Certificateholders Beneficiaries in respect of any Outstanding Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), sixty (i60) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 Receivables Trustee, or to the Servicer and the Receivables Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% a majority of the Certificateholders Ownership Interests Beneficiaries, and continues to have a Material Adverse Effect on the interests of such Beneficiaries in respect of such Outstanding Series for such period;
(c) any relevant representation, warranty or certification made by the Servicer in this Deed or in any certificate delivered pursuant hereto proves to have been incorrect when made, which has a Material Adverse Effect on the interests of the Beneficiaries in respect of any Outstanding Series adversely affected thereby; orand continues to be incorrect in any material respect for a period of sixty (60) days after the date on which written notice of such incorrectness, requiring the same to be remedied, shall have been given to the Servicer by the Receivables Trustee or to the Servicer and the Receivables Trustee by a majority of the Beneficiaries, and continues to have a Material Adverse Effect on the interest of such Beneficiaries in respect of such Outstanding Series for such period;
(d) a decree or an order of a the court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 is made for 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 and such decree or order shall have remained in force undischarged or unstayed for a period of 60 sixty (60) days; ;
(e) a receiver, administrator, administrative receiver, liquidator, trustee or similar officer is legally and validly appointed over the Servicer or relating to all of the Servicer's revenues and assets;
(f) the 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 liabilitiesadministrative receiver, voluntary liquidation 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 an order of the court is made for its winding-up, dissolution, administration or re-organisation (except for a solvent re-organisation) and such order shall have remained in force undischarged or unstayed for a period of sixty (60) days;
(g) a duly authorised officer of the Servicer shall admit in writing its inability that the Servicer is unable to pay its debts as they become due, file fall due within the meaning of Section 123(1) of the Insolvency ▇▇▇ ▇▇▇▇ or the Servicer makes a petition to take advantage of any applicable insolvency or reorganization statute, make an general assignment for the benefit of or a composition with its creditors or voluntarily suspend suspends payment of its obligations with a view to the general readjustment or take any corporate action rescheduling of its indebtedness; or
(h) delegation by the Servicer of its duties under this Deed except as permitted by Clause 11.6 (Delegation of Duties), which has a Material Adverse Effect on the interests of the Beneficiaries in furtherance respect of any of Outstanding Series, the foregoing; then, so long as such Servicer Default shall not have been remedied, either the Receivables Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Aggregate Certificateholders Ownership Interests, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Servicer Termination Notice"), ) may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and Deed. If the Receivables Trustee at any time becomes entitled to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute give a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer of such Termination Notice, and on the date that it shall give such a Successor Servicer shall have been appointed notice if requested to do so by the Trustee pursuant to Section 10.02, all authority and power a majority of the Servicer under this Agreement Investor Beneficiaries and shall pass to and be vested in not give such a notice without the Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure prior agreement of a majority 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 ServicerInvestor Beneficiaries. Notwithstanding the foregoing, a delay in or failure of performance or lack of correctness referred to in subsection 10.01(aparagraph (a) above for a period of 10 five Business Days or under subsection 10.01(bparagraph (b) or (c) above for a period of 60 Business Days, days 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 enemyGod, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages cuts 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 Deed and any relevant agreement and the Servicer shall provide the Receivables Trustee, any Credit Enhancement Provider, Provider and the Transferor and the Holders of Investor 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 Receivables Trustee shall promptly forward a copy of such Officer's Certificate to each Beneficiary.
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 (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Indenture Trustee to make any required drawingsuch payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing 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 or the Indenture, and which continues unremedied for a period of five (5) Business Days after the earlier of the date on which (A) any Responsible Officer of the Servicer becomes aware of such failure or (B) written notice thereof shall have been given to such Responsible Officer from any other party to a Transaction Document; or
(b) any failure on the part of the Servicer duly to observe or perform perform, in any material respect (in the sole reasonable determination of the Administrative Agent), any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j)), which has a material adverse effect on or the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) Indenture and which continues unremedied for a period of 60 sixty (60) days after the earlier of the date on which written notice (A) any Responsible Officer of the Servicer becomes aware of such failure, stating that such or (B) written notice is a "Notice of Servicer Default" hereunder and requiring the same to be remedied, thereof shall have been given to such Responsible Officer from any other party to a Transaction Document; provided that the Servicer by the Trusteemateriality qualifier set forth herein shall not apply to any covenant or agreement, or if and to the Servicer and the Trustee extent that observance or compliance with such covenant or agreement is qualified by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period“Adverse Effect” or another materiality qualifier; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;or
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement the Indenture or in any certificate (including without limitation any Monthly Servicer Report) delivered pursuant to this Agreement or any Supplement the Indenture shall prove to have been incorrect when made, which made or deemed made and such failure has a material adverse effect on the Investor Certificateholders of any Series Noteholders (which determination shall be made without regard to as determined by the availability of any Credit Enhancement or similar credit support deviceAdministrative Agent in its sole reasonable discretion) and which continues to be incorrect in any material respect unremedied for a period of 60 sixty (60) days after the earlier of the date on which (A) any Responsible Officer of the Servicer becomes aware of such failure or (B) written notice of such failure, requiring the same to be remedied, thereof shall have been given to such Responsible Officer from any other party to a Transaction Document; provided that the Servicer by the Trusteemateriality qualifier set forth herein shall not apply to any representation, warranty or certification, if and to the Servicer and extent that the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% effect of the Certificateholders Ownership Interests making of any Series adversely affected therebysuch representation, warranty or certification is qualified by “Adverse Effect” or another materiality qualifier; or
(d) a decree an Insolvency Event with respect to the Servicer; or
(e) the Servicer or order of a court OneMain Financial or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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, affiliate thereof shall have been entered against the Servicer and such decree terminated or order shall have remained in force undischarged otherwise removed as servicer, master servicer or unstayed for subservicer of any other personal loan securitization following a period of 60 days; or the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvencyservicer default, readjustment of debtmaster servicer default, marshalling of assets and liabilities, voluntary liquidation subservicer default or similar proceedings event in connection with such other securitization; or
(f) the occurrence of or relating to an Event of Default; then, in the Servicer or of or relating to all or substantially all of its property; or the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage event of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoing; thenServicer Default, so long as such a Servicer Default shall not have been remediedis continuing, either the Trustee, or Indenture Trustee may (and upon the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% written direction of the Aggregate Certificateholders Ownership InterestsRequired Noteholders shall), by notice then given in writing to the Servicer, the Issuer, the Issuer Loan Trustee for the benefit of the Issuer, the Back-up Servicer and each Noteholder (and by delivery to the Trustee if given by the Investor CertificateholdersAdministrative Agent) (a "“Termination Notice"), may ”) (i) terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in the Indenture and (ii) direct the applicable party to terminate any power of attorney granted to the ReceivablesServicer and direct such party to execute a new power of attorney to the Indenture Trustee or its designee. Any determination that an inaccuracy or other event, which with notice and/or the passage The existence of time would constitute a Servicer Default, would have a material adverse effect on Holders Default may be waived with the consent of one or more Series the Administrative Agent (acting at the direction of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such SeriesRequired Noteholders). After receipt by the Servicer of such a Termination Notice, and effective on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.02Servicing Transfer Date, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor ServicerServicer (a “Servicing Transfer”) appointed by the Indenture Trustee pursuant to Section 8.02; and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperatecooperate promptly) 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 transfer of servicing rights and obligationsServicing Transfer. The Servicer agrees to cooperate and to cause each Subservicer to cooperate (and each Subservicer agrees to cooperate) with the Indenture Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder includingand (ii) transferring all duties and obligations of the Servicer hereunder to such Successor Servicer, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service and administer the Trust Assets Loans provided for under this Agreement, including, without limitation, 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 Principal Account, and any Series Account or other applicable Note Account, or which shall thereafter be received with respect to the Trust AssetsLoans, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustServicer. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 its electronic records relating to the Loans, together with all other records, correspondence and documents necessary for the continued servicing and administration of the Trust Assets Loans in the manner and at such times as the Successor Servicer shall reasonably request. Notwithstanding the foregoing, the Servicer shall be allowed to retain a copy of all records, correspondence and documents provided to the Successor Servicer in compliance with the Servicer’s recordkeeping policies or Requirements of Law. 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 10.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidentialconfidential or give the Successor Servicer access to software or other intellectual property, 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(aparagraph (a) above for a period of 10 five (5) Business Days after the applicable grace period or under subsection 10.01(bparagraph (b) or (c) above for a period of 60 Business Dayssixty (60) 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 a Force Majeure Event. If, following the expiration of God such incremental sixty-day grace period in the case of a delay or failure of performance described in paragraph (b) or (c) above, the public enemyapplicable delay or failure of performance remains outstanding but the Servicer continues to work diligently to remedy such delay or failure of performance, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages or similar causesthen the grace period shall be extended for a further thirty (30) days upon notice from the Servicer to the Indenture Trustee. The preceding sentence sentences 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, any Credit Enhancement Provider, the Transferor Issuer and the Holders of Investor Certificates Depositor 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: Sale and Servicing Agreement (OneMain Financial 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 (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or 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;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j))Agreement, which has a material adverse effect on the Investor Certificateholders Noteholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and requiring the same to be remedied, shall have been given to the Servicer by the Trustee, Issuer (or to the Servicer and the Indenture Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% on behalf of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(gIssuer), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement Issuer or similar credit support device) Noteholders 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 less than 50% of the Certificateholders Ownership Interests of any Series adversely affected therebyIssuer; or
(d) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or Insolvency Event with respect to 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoinghave occurred; then, so long as such Servicer Default shall not have been remedied, either the TrusteeIssuer may, or if directed by the Holders Indenture Trustee (acting at the direction of Investor Certificates evidencing Undivided Interests aggregating more Noteholders of not less than 5066 2/3% of the Aggregate Certificateholders Ownership InterestsOutstanding Dollar Principal Amount of the Notes for all Series), by delivery of a written notice then given in writing of termination to the Servicer (and to the Trustee if given by the Investor Certificateholders) Issuer (a "“Termination Notice"”), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such SeriesAgreement. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee Issuer pursuant to Section 10.025.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer; and, without limitation, the Trustee Issuer 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 transfer of servicing rights and obligations. The Servicer agrees to cooperate with the Trustee Issuer 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 Trust Assets Receivables provided for under this Agreement, 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 Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds, Recoveries allocable and Interchange (if any) applicable to the TrustIssuer. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 5.01 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 shall be reasonably necessary for the Servicer shall deem reasonably necessary to protect its interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(a5.01(a) for a period of 10 additional Business Days or under subsection 10.01(b5.01(b) or (c) for a period of 60 additional Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor Certificates Issuer 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. For the avoidance of doubt, the determination of a Servicer Default shall be based solely on the provisions in this Section 5.01, and the occurrence of a material instance of noncompliance with the applicable servicing criteria specified in Item 1122(d) of Regulations AB shall not be determinative that a Servicer Default has occurred.
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 (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement on or before the date occurring five Enhancement, in each case, within one Business Days Day after the date of the receipt by the Servicer of written notice from the Trustee or any Purchaser Representative that such payment, transfer, deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement, any Supplement or any Receivables Purchase Agreement;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j)), which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 any Supplement or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this 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 the availability of any Credit Enhancement or similar credit support device) Receivables, and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues to be incorrect in any material respect 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 25% of the Investor Interest of any Certificate Series, or an Enhancement Provider and such material adverse effect continues for such period; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement or any Receivables Purchase Agreement or in any certificate delivered pursuant to this Agreement, any Supplement or any Receivables Purchase Agreement shall prove to have been incorrect when made, which has a material adverse effect on (i) the 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 Receivables, and which continues to be incorrect in any material respect for a period of 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 the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 5025% of the Certificateholders Ownership Interests Investor Interest of any Certificate Series adversely affected therebyor an Enhancement Provider and such material adverse effect continues 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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoingobligations; then, so long as 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 Certificateholders Ownership InterestsInvestor/Purchaser Interest, by notice then given in writing to the Servicer Servicer, and each Purchaser Representative (and to the Trustee if given by the Investor CertificateholdersCertificateholders or the Purchaser Representatives) (a "“Servicer Termination Notice"”), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the ReceivablesAgreement. Any determination that an inaccuracy or other event, which with notice and/or the passage The Trustee shall promptly notify any Enhancement Provider of time would constitute a any such Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer of such Servicer Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, 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 Account or any Series Account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable Insurance Proceeds applicable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 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 reasonably necessary to protect its interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under the Credit any Enhancement with respect to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(a) 10.1(a), for a cumulative period of 10 ten Business Days Days, or under subsection 10.01(b10.1(b) or (c) ), for a cumulative period of 60 sixty Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor Seller, and the Holders of Investor Certificates 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 (Alliance Data Systems Corp)
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 (other than with respect to any Credit Balances) deposit, or to give instructions or notice to the Trustee pursuant to Article IV make such payment, transfer or deposit, or to instruct give notice to the Trustee as to make any required drawing, withdrawal, or payment action to be taken under any Credit Enhancement Agreement, in any case on or before the date occurring five two (2) Business Days after the date receipt of written notice of such payment, transfer, deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreementfailure;
(b) failure on the part of the Servicer duly to observe or perform in its covenant not to create any respect lien on any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j))Receivable, which failure has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07thirty (30) days; provided, however, that a Servicer Default shall not be deemed to have occurred if the Depositor shall have repurchased the affected 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 in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, including the delivery of any annual report or certificate pursuant to Sections 3.05 or 3.06 hereof, which failure has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues afteruncured for a period of thirty (30) days (or, upon delivery to the Trustee and notwithstandingto Certificateholders of a Servicer Default Certificate, such longer period as may be reasonably necessary to effect a cure) after the removal receipt by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
; (cd) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer Report) delivered pursuant to this Agreement (including any certificates or any Supplement statements delivered pursuant to the requirements of Section 3.04 and Section 3.05) shall prove to have been materially incorrect when made, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues to be incorrect in any material respect for a period of 60 thirty (30) days after the date on which receipt of written notice thereof and as a result of such failurewhich the interests of the Certificateholders are materially and adversely affected; provided, requiring however, that a Servicer Default shall not be deemed to have occurred if the same to be remedied, Depositor shall have been given repurchased the affected Receivables or, if applicable, all of the Receivables during such period in accordance with the provisions of this Agreement; or (e) 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 by the Trusteeor of or relating to all or substantially all of its property, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby; or
(d) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 days; or 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its propertyServicer; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take (any corporate action in furtherance such event, an "Insolvency Event"). In the event of any of the foregoing; thenServicer Default, so long as such Servicer Default shall not have been remedied, either the Trustee, Trustee or the Holders pursuant to a Consent of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Aggregate Certificateholders Ownership InterestsCertificateholders, by notice then given in writing to the Servicer (and to the Trustee 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 (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the ReceivablesReceivables and the proceeds thereof. Any determination that an inaccuracy or other event, which with The Trustee shall give prompt written notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard any such event to the availability Rating Agencies, as well as any waivers or cures of any Credit Enhancement or similar credit support device with respect to such Seriesevent promptly after receipt of written notice thereof. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.0210.02 hereof, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer; 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 transfer of servicing rights and obligationsService Transfer; provided, however, that in no event shall the Servicer incur any liability for any such action taken 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 includinghereunder, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, including, without limitation, 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 Principal Account, and any Series Account, or which shall thereafter be received with respect to the Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustReceivables. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Trust Assets Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request request, and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Trust Assets Receivables in the manner and at such times as the Successor Servicer shall reasonably request. Gottschalks, as Servicer also agrees to provide such access, computer time and personnel to the Successor Servicer as shall be necessary in order to assist the Successor Servicer in assuming its duties hereunder. 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 Servicerinterest. Notwithstanding the foregoing, a delay in or failure of performance referred to in under subsection 10.01(a(a) of this Section 10.01 for a period of 10 up to five (5) Business Days after the applicable grace period, or a delay in or failure of performance (or the continuance of any such delay or failure) under subsection 10.01(b(b), (c) or (cd) of this Section 10.01 for a period of 60 up to thirty (30) Business DaysDays (or, upon delivery to the Trustee and Certificateholders of a Servicer Default Certificate, such longer period as is reasonably necessary to effect a cure) 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 continuance was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages floods or similar causes. The preceding sentence shall not relieve the Servicer from using of its obligation to use 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 Credit Enhancement Provider, the Transferor Providers and the Holders of Investor Certificates Depositor 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 the Trustee in writing of any Servicer Default.
Appears in 1 contract
Servicer Defaults. 4.1 SERVICER DEFAULTS If any one of the following events (a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement;
(b) failure on the part of the Servicer or any Co-Servicer duly to observe or perform in any respect any other of the covenants or agreements of the Servicer or Co-Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j)), or any 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 - 11 - Applicable Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 the Holders of Investor Certificates evidencing Undivided Interests aggregating not less Beneficiaries representing in aggregate more than 50% one-half of the Certificateholders Ownership aggregate Investor Interests of any Applicable Series adversely affected thereby (copied to the Receivables Trustee) and continues to materially adversely affect such have a Material Adverse Effect on the interests of an Investor Certificateholders Beneficiary of any Applicable Series for such period; or ;
(b) delegation by the Servicer shall delegate or assign any Co-Servicer of its duties under this AgreementAgreement to any other entity, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failureClause 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 (including without limitation any Monthly Servicer Report) 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 interests of the Investor Certificateholders Beneficiaries of any Applicable Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 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 Undivided Interests aggregating not less Beneficiaries representing in aggregate more than 50% one-half of the Certificateholders Ownership aggregate Investor Interests of any Applicable Series adversely affected thereby; orthereby (copied to the Receivables Trustee) and continues to have a Material Adverse Effect on the interests of an Investor Beneficiary of any Applicable Series affected for such period;
(d) a decree the Servicer or order of a court any Co-Servicer shall consent to or agency or supervisory authority having jurisdiction in the premises in an involuntary case under take any present or future federal or state bankruptcy, insolvency or other similar law for 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 it or relating to all or substantially all of its revenues and assets or an order of the court is made for 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 the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvencyreceiver, readjustment of debtadministrator, marshalling of assets and liabilitiesadministrative receiver, voluntary liquidation 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 is legally and validly appointed;
(e) a duly authorised officer of the Servicer or the any Co-Servicer shall admit in writing its inability that the Servicer or such Co-Servicer is unable to pay its debts as they become due, file fall due within the meaning of Section 123(1) of the Insolvency Act 1986 or the Servicer or such Co-Servicer makes a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for general as▇▇▇▇▇▇▇▇ ▇▇▇ the benefit of or a composition with its creditors or voluntarily suspend suspends payment of its obligations with a view to the general readjustment or take any corporate action in furtherance rescheduling of any of the foregoing; thenits indebtedness, then so long as 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 Undivided Interests aggregating Beneficiaries representing in aggregate more than 5066 2/3% of the Aggregate Certificateholders Ownership InterestsInvestor Interest, by notice then given in writing to the Servicer or, if applicable, the Co-Servicer (and copied to the Trustee if given by the Investor CertificateholdersReceivables Trustee) (a "Termination NoticeTERMINATION NOTICE"), may terminate all of the rights and obligations of the Servicer and any Co-Servicer as Servicer (and which termination shall apply to each person acting as Co-Servicer if more than one Person is acting as Servicer) respectively under this Agreement and Agreement. For the avoidance of doubt, any Termination Notice given in and to accordance with this Clause 4.1 shall terminate the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage appointment of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by both the Servicer and any Co-Servicer regardless of such Termination Notice, and on which entity was the date that a Successor Servicer shall have been 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 ServicerDefault. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(bClause 4.1(a), (b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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 Trustee, any Credit Enhancement Provider, the Transferor, any Additional Transferor and the Holders of Investor Certificates each Beneficiary 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: Beneficiaries Servicing Agreement (Gracechurch Receivables Trustee LTD)
Servicer Defaults. If The happening of any one or more of the following events (shall constitute a "Servicer Default") shall occur and be continuingDefault hereunder:
(a) any Any failure by the Servicer to make any payment, transfer or deposit (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal advance or drawing or such instruction or notice is transfer of funds required to be made paid, deposited, advanced or given, as the case may be, transferred under the terms of this Agreement, and such failure continues unremedied for five (5) Business Days after discovery by Servicer of such failure or receipt by Servicer of notice of such failure;
(b) failure Failure on the part of the Servicer duly to observe or perform in any material respect any other of the covenants or agreements of the Servicer set forth contained in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j)), which has a material adverse effect on or the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and Supervisory Servicing Agreement which continues unremedied for a period of 60 thirty (30) days after the date on which earlier to occur of the Servicer obtaining actual knowledge of such failure or the Servicer's receipt of written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and requiring failure or breach as 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07case may be; provided, however, if such failure shall be of a nature that it cannot be cured within thirty (30) days, such failure on the part of shall not constitute a Servicer Default hereunder if within such 30-day period the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard gives notice to the availability of any Credit Enhancement or similar credit support device) Trustee and which continues after, and notwithstanding, the removal by the Supervisory Servicer of the related Receivable corrective action it proposes to take, which corrective action is agreed in accordance with writing by the last paragraph of Section 3.03, shall Trustee to be a Servicer Default unless satisfactory and the Servicer shall have, within 60 days after the date thereafter pursue such corrective action diligently until such default is cured but in no event longer than ninety (following such removal90) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failuredays;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 less than 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby; or
(d) a A decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 ninety (90) days; or the ;
(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, voluntary liquidation liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or the ;
(e) 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 an assignment for the benefit of its creditors or voluntarily suspend payment payments of its obligations or take any corporate action obligations;
(f) The Servicer shall cease to be an Eligible Servicer;
(g) A material adverse change occurs in furtherance of any the financial condition of the foregoing; thenServicer, so long as such Servicer Default shall not have been remedied, either which change materially impairs the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Aggregate Certificateholders Ownership Interests, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations ability of the Servicer as to perform its obligations under this Agreement; or
(h) Any representation or warranty made by the Servicer (in any Transaction Document proves to have been incorrect in any material respect when made, which has a material adverse effect on the Noteholders and which termination shall apply continues to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders or be incorrect in any material respect for a period of one or more Series thirty (30) days after written notice of Certificates shall such inaccuracy, requiring it to be made without regard remedied, has been given to the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt Servicer by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; and, without limitationTrustee, the Trustee is hereby authorized and empowered (upon the failure of the Supervisory 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related ReceivablesNoteholder; provided, however, if such inaccuracy is of a nature that it cannot be remedied within such software shall be used 30-day period the Servicer gives notices to the Trustee and the Supervisory Servicer of the corrective action it proposes to take, which corrective action is agreed in writing by the Successor Servicer solely for the purposes of servicing the Trust Assets. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under the Credit Enhancement with respect Trustee to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 satisfactory and the Servicer shall provide thereafter pursue such corrective action diligently until such default is cured but in no event longer than ninety (90) days from the Trustee, any Credit Enhancement Provider, the Transferor and the Holders of Investor Certificates with an Officer's Certificate giving prompt notice date 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 obligationsnotice.
Appears in 1 contract
Servicer Defaults. If any one of the following events (a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (other than with respect to any Credit Balances) or deposit, or, if applicable, to give instructions or notice to the Trustee pursuant to Article IV make such payment, transfer or deposit, or to instruct give notice to the Trustee as to make any required drawing, withdrawalaction to be taken under POOLING AND SERVICING AGREEMENT any Enhancement Agreement, or payment under any Credit Enhancement on or before to provide a Monthly Servicer's Report to the date occurring five Trustee, in each case, within two Business Days after the date such payment, transfer, deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement;same shall become due; or
(b) failure on the part of the Servicer duly shall fail to observe or perform in any respect any other covenants covenant or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j))agreement applicable to it contained herein, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which failure continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 TrusteeTrustee or an Enhancement Provider, or to the Servicer and the Trustee by the Holders holders of Investor Certificates evidencing Undivided Interests aggregating not less than 5025% of the Certificateholders Ownership Interests Series Invested Amount of any Series adversely affected therebyor an Enhancement Provider; or
(c) any representation, warranty or certification made or deemed made by the Servicer under or in connection with any Transaction Document, or in any certificate or information delivered pursuant to or in connection with any Transaction Document shall prove to have been incorrect on or as of the date made or deemed made, which continues to be incorrect 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 an Enhancement Provider, or to the Servicer and the Trustee by holders of Investor Certificates evidencing not less than 25% of the Series Invested Amount of any Series or an Enhancement Provider; or
(d) a decree or order of a court or agency or supervisory authority having jurisdiction in an Insolvency Event shall occur with respect to the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 Servicer; or
(e) the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 daysassigns its duties under this Agreement, except as specifically permitted by Section 8.02; or the or
(f) The Servicer shall consent at any time fail to the appointment have Consolidated Tangible Net Worth of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoingat least $250,000; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders holders of Investor Certificates evidencing Undivided Trust Interests aggregating more than 5066 2/3% of the Aggregate Certificateholders Ownership InterestsInvested Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination NoticeSERVICER TERMINATION NOTICE"), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the ReceivablesAgreement. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates The Trustee shall be made without regard to the availability promptly notify any Enhancement Provider of any Credit Enhancement or similar credit support device with respect to such SeriesServicer Default of which a Responsible Officer of the Trustee has actual Knowledge. After receipt by the Servicer of such Servicer Termination Notice, and on the date that a Successor Servicer shall have been appointed accepts its appointment as such 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; and, without limitation, the Trustee is hereby authorized and POOLING AND SERVICING AGREEMENT 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 transfer 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 including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, including, without limitation, 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 Concentration Account, any Collection Account, the Finance Charge Account, the Principal Account, and Excess Funding Account or any Series Account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable Insurance Proceeds applicable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Receivables, the Accounts and the other 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, the Accounts and the other Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under the Credit any Enhancement with respect to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection Section 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) b), for a cumulative period of 60 five Business Days, Days 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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, Provider and the Transferor and the Holders of Investor 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 (Elder Beerman Stores Corp)
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 deposit or deposit (other than with respect to any Credit Balances) or to give instructions or notice credit to the Trustee pursuant to Article IV or to instruct the Trustee to make Collection Account any amount required drawing, withdrawal, or payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or drawing or such instruction or notice is required this Agreement to be made so deposited or given, as the case may be, under the terms of this Agreement;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j))credited, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which failure continues unremedied for a period of 60 days two Business Days after discovery by the date on which Servicer or receipt by the Servicer of written notice of such failurefailure from the Issuer, stating that the Indenture Trustee or the Insurer or after discovery of such notice is a "Notice of Servicer Default" hereunder and requiring the same to be remedied, shall have been given to the Servicer failure by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% an officer of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; Servicer;
(b) the Insurer, the Indenture Trustee or the Servicer Issuer shall delegate or assign its duties under this Agreement, except as permitted by not have received a report in accordance with Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal 3.08 by the Servicer of the related Receivable in accordance Report Date with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following respect to which such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) report is due and which continues to be incorrect in any material respect shall continue unremedied for a period of 60 days one day after the date on which written notice of such failure, requiring the same to be remedied, shall have been given;
(c) failure on the part of the Seller or the Servicer duly to observe or to perform any other covenants or agreements of the Seller or the Servicer set forth in this Agreement or any other Basic Document, which failure shall (i) materially and adversely affect the rights of the Noteholders, the Insurer, the Issuer, the Owner Trustee or the Indenture Trustee and (ii) continue unremedied for a period of 30 days after the date on which the Seller, the Custodian or the Servicer shall have knowledge of such failure or written notice of such failure, requiring the same to be remedied, shall have been given (A) to the Servicer Seller or the Servicer, as the case may be, by the TrusteeInsurer, the Issuer, the Owner Trustee or the Indenture Trustee or (B) to the Servicer Seller or the Servicer, as the case may be, and to the Issuer and the Indenture Trustee by Noteholders, acting together as a single class, evidencing in the Holders of Investor Certificates evidencing Undivided Interests aggregating aggregate not less than 5025% of the Certificateholders Ownership Interests Outstanding Principal Amount of any Series adversely affected thereby; the Notes or, so long as no Insurer Default has occurred and is continuing, by the Insurer;
(d) the entry of a decree or order of for relief by a court or agency or supervisory regulatory authority having jurisdiction in respect of the premises Servicer or the Seller in an involuntary case under the federal bankruptcy laws, as now or hereafter in effect, or another present or future, federal or state, bankruptcy, insolvency or similar law, or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Servicer or the Seller or of any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Servicer or the Seller and the continu- ance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the commencement of an involuntary case under the federal bankruptcy laws, as now or hereinafter in effect, or another present or future federal or state bankruptcy, insolvency or other similar law for and such case is not dismissed within 60 days;
(e) the appointment commencement by the Servicer or the Seller of a conservator voluntary case under the federal bankruptcy laws, as now or receiver hereafter in effect, or liquidator in any insolvencyother present or future, readjustment of debtfederal or state, marshalling of assets and liabilities bankruptcy, insolvency or similar proceedingslaw, or for the winding-up or liquidation of its affairs, shall have been entered against consent by 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 consent Seller to the appointment of or taking possession by a conservator receiver, liquidator, assignee, trustee, custodian, sequestrator or receiver or liquidator in any insolvency, readjustment other similar official of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or the Seller or of or relating to all or substantially all any substantial part of its property; property or the making by the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage or the Seller of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment the failure by the Servicer or the Seller generally to pay its debts as such debts become due or the taking of its obligations or take any corporate action by the Servicer or the Seller in furtherance of any of the foregoing;
(f) any merger or consolidation or sale of assets of the Servicer in violation of the covenant set forth in Section 6.02 hereof;
(g) the Servicer shall have failed in the reasonable opinion of the Insurer to service the Contracts in accordance with the Servicing Standards and such failure shall have continued unremedied for 30 days after written notice of such failure shall have been delivered to the Servicer by the Insurer;
(h) any representation, warranty or statement of the Servicer or the Seller made in this Agreement or the other Basic Documents or any certificate, report or other writing delivered pursuant hereto shall prove to be incorrect in any material respect as of the time when the same shall have been made (excluding, however, any representation or warranty made in this Agreement or any other Basic Document as to which Section 2.03 or 3.06 shall be applicable so long as the Servicer or the Seller shall be in compliance with Section 2.03 or 3.06, as the case may be), and the incorrectness of such representation, warranty or statement has a material adverse effect on the Noteholders or the Insurer and, within 30 days after written notice thereof shall have been given to the Servicer or the Seller by the Indenture Trustee or the Issuer or by Noteholders, acting together as a single class, evidencing in the aggregate not less than 25% of the Outstanding Principal Amount of the Notes, or so long as no Insurer Default has occurred, by the Insurer, the circumstance or condition in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured;
(i) the subservicing agreement between World Omni Financial Corp. and the Servicer shall for any reason cease to be in full force and a successor Subservicer acceptable to the Insurer shall not be appointed within 60 days, or if any party thereto denies that it has any further liability thereunder or gives notice to such effect;
(j) the Indenture Trustee shall, for any reason, fail to have a valid perfected first priority security interest in Contracts pledged by the Issuer to the Indenture Trustee the outstanding aggregate Principal Balance of which exceeds 5.00% of the Pool Balance;
(k) unless authorized under Section 5.02, the Seller shall enter into any transaction described in Section 5.02 regardless of the surviving entity; thenor
(l) an Event of Default as defined in the Insurance Agreement; then and in each and every case, so long as such Servicer Default shall not have been remedied, either (i) if no Insurer Default has occurred and is continuing, the TrusteeInsurer or (ii) if an Insurer Default has occurred and is continuing, or the Holders Indenture Trustee acting at the direction of Investor Certificates the Noteholders evidencing Undivided Interests aggregating more not less than 5025% of the Aggregate Certificateholders Ownership Interestsoutstanding amount of the Notes, acting together as a single Class, by notice then given in writing to the Servicer (and to the Insurer, the Indenture Trustee and the Issuer if given by the Investor CertificateholdersNoteholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer under this Agreement. Upon such termination, termination of the Servicer as custodian, if the Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other eventsuch, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall can be made without regard pursuant to Section 2.08. On or after the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.02written notice, all authority and power of the Servicer under this Agreement shall Agreement, whether with respect to the Notes, the Contracts or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer; Servicer as may be appointed under Section 7.02 and, without limitation, the Indenture Trustee is and the Issuer are hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, deliver on behalf of the 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 notice of termination, whether to complete the transfer and endorsement of servicing rights the Contracts and obligationsrelated documents, or otherwise. The Servicer agrees to shall cooperate with the Trustee Indenture Trustee, the Insurer and such Successor Servicer the Issuer in effecting the termination transfer of the responsibilities and rights of the Servicer under this Agreement (whether due to conduct servicing hereunder includingtermination, without limitationresignation or otherwise), including the transfer to the Indenture Trustee or such Successor Servicer Servicer, as applicable, for administration by it of all authority of cash amounts that (i) shall at the Servicer to service the Trust Assets provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer time be held by the Servicer for depositdeposit in, or which shall have been deposited by the ServicerServicer in, in the Collection Account, the Finance Charge Account, the Principal Account, and any Series Account, Account or which (ii) shall thereafter be received with respect to the Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under the Credit Enhancement it with respect to any Series Contract. The predecessor Servicer shall pay all costs of the Successor Servicer associated with its transition to the role of Successor Servicer. Notwithstanding the foregoingServicer (whether due to termination, a delay in resignation or failure of performance referred to in subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor 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 obligationsotherwise).
Appears in 1 contract
Sources: Sale and Servicing Agreement (Auto Nations 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 (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement on or before the date occurring five ten Business Days after the date such payment, transfer, deposit, deposit withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement;
; (b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j))Agreement, which has a material adverse effect on the Investor Certificateholders Holders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 5025% of the Certificateholders Ownership Interests Investor Interest of any Series adversely affected thereby and continues continue to materially adversely affect such Investor Certificateholders Holders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.078.7; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders Holders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 less than 5025% of the Certificateholders Ownership Interests Investor Interest of any Series adversely affected therebythereby and continues to materially adversely affect such Investor Holders for such period; or
or (d) Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to 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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoingobligations; then, so long as 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 Certificateholders Ownership InterestsInvestor Interest, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor CertificateholdersHolders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such SeriesAgreement. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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 including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, including, without limitation, 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 Principal Excess Funding Account, and any Series Account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 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 reasonably necessary to protect its interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(a10.1(a) for a period of 10 30 Business Days or under subsection 10.01(b10.1(b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor 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 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 (other than with respect to any Credit Balances) or to give notice or instructions or notice to the Trustee pursuant to Article IV or to instruct the Indenture Trustee to make any required drawingwithdrawal or payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or drawing 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, 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 (other than those set forth in subsections 3.03(g), (i) and (j)), 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 the availability Series, Class or Tranche of any Credit Enhancement or similar credit support device) Notes and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), sixty (i60) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 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 Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests aggregate unpaid principal amount of all Series, Classes or Tranches of Notes sustaining such Adverse Effect; or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06;
(c) any representation, warranty or certification 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 an Adverse Effect on the rights of the Noteholders of any Series adversely affected thereby; orSeries, Class or Tranche of notes and which Adverse Effect continues for a period of 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, the Owner Trustee, the Indenture Trustee and the Collateral Agent by the Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches of Notes to which such representation, warranty or certification relates;
(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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 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 (60) days; or 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take obligations; or
(e) any corporate action other Servicer Default described in furtherance of any of the foregoingIndenture Supplement; then, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating more than 50% of the Aggregate Certificateholders Ownership Interestsaggregate unpaid principal amount of all affected Notes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "“Termination Notice"”), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement Agreement; provided, however, if within sixty (60) days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with subsection 10.02(a) to act as a Successor Servicer and in and receives an Officer’s Certificate of the Servicer to the Receivables. Any determination effect that an inaccuracy or other event, the Servicer cannot in good faith cure the Servicer Default which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard gave rise to the availability Termination Notice, the Indenture Trustee shall assume the role of any Credit Enhancement or similar credit support device with respect to such SeriesSuccessor Servicer. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been 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; 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 transfer of servicing rights and obligationsService 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 includinghereunder, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Collateral provided for under this Agreement, including, without limitation, 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 Principal Account, and any Series Account, or which shall thereafter be received with respect to the Trust AssetsCollateral, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall promptly within twenty (20) Business Days transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets Collateral 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(aparagraph (a) above for a period of 10 ten (10) Business Days after the applicable grace period or under subsection 10.01(bparagraph (b) or (c) above for a period of 60 sixty (60) Business DaysDays 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, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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, any Credit Enhancement Providerthe Owner Trustee, the Transferor Collateral Agent and the Holders of Investor Certificates Transferor 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: Transfer and Servicing Agreement (Jpmorgan Chase Bank, National Association)
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 (other than with respect to any Credit Balances) or to give instructions or notice to the Issuer Trustee or the Collateral Agent pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement Enhancement, or to deliver any required Monthly Report hereunder on or before the date occurring five two Business Days after the date such payment, transfer, deposit, withdrawal or drawing drawing, or such instruction or notice or report is required to be made or given, as the case may be, under the terms of this Agreement;; 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 (other than those set forth in subsections 3.03(g), (i) and (j)), or any Supplement which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and Noteholders, which continues unremedied for a period of 60 30 days after the first to occur of (i) the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and failure requiring the same to be remedied, remedied shall have been given to the Servicer by the TrusteeCollateral Agent, or to the Servicer and the Trustee Collateral Agent by the Noteholders or the Applicable Indenture Trustee on behalf of such Holders of Investor Certificates evidencing Undivided Interests Notes aggregating not less than 5025% of the Certificateholders Ownership Interests Principal Amount of any Series adversely affected thereby and (ii) the date on which a Responsible Officer of the Servicer becomes aware thereof and such failure continues to materially adversely affect such Investor Certificateholders Noteholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;or
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) Noteholders and which continues to be incorrect in any material respect for a period of 60 30 days after the first to occur of (i) the date on which written notice of such failure, incorrectness requiring the same to be remedied, remedied shall have been given to the Servicer and the Issuer Trustee by the TrusteeCollateral Agent, or to the Servicer Servicer, the Issuer Trustee and the Trustee Collateral Agent by the Noteholders or by the Applicable Indenture Trustee on behalf of Holders of Investor Certificates evidencing Undivided Interests Notes aggregating not less than 5025% of the Certificateholders Ownership Interests Principal Amount of any Series adversely affected therebythereby and (ii) the date on which a Responsible Officer of the Servicer becomes aware thereof, and such incorrectness continues to materially adversely affect such Holders for such period; or
(d) a decree or order of a court or agency or supervisory authority having jurisdiction in an Insolvency Event shall occur with respect to the premises in an involuntary case under Servicer; or
(e) the Servicer delegates any present or future federal or state bankruptcy, insolvency or other similar law 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 duties hereunder except to the Servicer extent such delegation is permitted hereunder and such decree or order shall have remained in force undischarged or unstayed delegation continues unremedied for a period of 60 15 days; or 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoing; then, so long as such Servicer Default shall not have been remedied, either the TrusteeCollateral Agent, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Aggregate Certificateholders Ownership InterestsControlling Party, by written notice then given in writing to the Servicer and the Issuer Trustee (and to the Trustee Collateral Agent and Credit Enhancers if given by the Investor CertificateholdersNoteholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such SeriesAgreement. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee Collateral Agent 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; and, without limitation, the Trustee Collateral Agent 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 transfer of servicing rights and obligationsrights. The Subject to Section 12.2(c), the Servicer agrees to cooperate with the Trustee Collateral Agent and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder includinghereunder, including without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, 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 any Collection Account, the Finance Charge Account, the Principal Account, and any Series Reserve Account or Termination Account, or which shall thereafter be received with respect to the Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustInsurance Proceeds. The Servicer shall promptly transfer the Contract Files and its electronic records or electronic copies thereof relating to the Trust Assets Contracts in the Contract Pool 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 Trust Assets Contracts in the Contract Pool in the manner and at such times as the Collateral Agent or the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.01 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 reasonably necessary to protect its interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assetsinterest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under the Credit obligations, if any, in respect of any Enhancement with respect to any Series to the Successor Servicer. In connection with any servicing transfer, all reasonable costs and expenses (including reasonable attorneys' fees) incurred in connection with transferring the Contracts in the Contract Pool and the other Trust Assets 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 Collateral Agent is acting as the Servicer, in which case the original Servicer) upon presentation of reasonable documentation of such costs and expenses. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(a10.1(a) for a period of 10 five Business Days Days, or under subsection 10.01(b10.1(b), (c) or (ce) for a period of 60 Business Daysdays, in each case in addition to any grace period specified in such subsections, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages outages, bank closings, communications malfunction, computer malfunction or other electronic system malfunction 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 Issuer Trustee, any the Collateral Agent, the Seller and certain providers of Credit Enhancement Provider, the Transferor and the Holders of Investor 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 the Collateral Agent in writing of any Servicer Default.
Appears in 1 contract
Sources: Pooling, Collateral Agency and Servicing Agreement (Newcourt 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 instruct or deposit (other than with respect to any Credit Balances) or to give instructions or notice to the Receivables Trustee (or the Bank Account Operator acting on the Receivable Trustee's behalf) pursuant to Article IV an agreed schedule of collections and allocations or to instruct the Receivables Trustee (or the Bank Account Operator acting on the Receivable Trustee's behalf) to make any required drawing, withdrawal, or payment pursuant to the relevant documents including under any Credit Enhancement enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or drawing or such instruction instructions or notice is required to be made or given, as the case may be, under the terms of this AgreementDeed or any Relevant Document;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j)), Deed or any Relevant Document which has a material adverse effect Material Adverse Effect on the interests of the Investor Certificateholders Beneficiaries of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) Outstanding Issuance and which failure, if capable of remedy, continues unremedied for a period of 60 30 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues to be incorrect in any material respect for a period of 60 days more 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 Receivables Trustee, or to the Servicer and the Receivables Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than Beneficiary or Investor Beneficiaries holding 50% %, or more of the Certificateholders Ownership Investor Interests in respect of any Outstanding Series adversely affected thereby; orthereby and continues to have a Material Adverse Effect on the interests of such Investor Beneficiary in respect of such Outstanding Series for such period;
(c) delegation by the Servicer of its duties under this Deed to any other entity, except as permitted by Clause 10.6 (Delegation of Duties);
(d) any relevant representation, warranty or certification made by the Servicer in this Deed or in any certificate delivered pursuant hereto proves to have been incorrect when made, which has a decree Material Adverse Effect on the interests of the Investor Beneficiaries in respect of any Outstanding Series and continues to be incorrect in any material respect for a period of 60 days or order more 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 Receivables Trustee or to the Servicer and the Receivables Trustee by the Investor Beneficiary or Investor Beneficiaries holding 50%, or more of the Aggregate Investor Interest in respect of any Outstanding Series adversely affected thereby and continues to have a court Material Adverse Effect on the interests of the Investor Beneficiary in respect of any Outstanding Series affected for such period;
(e) the Servicer shall consent to or agency or supervisory authority having jurisdiction in the premises in an involuntary case under take any present or future federal or state bankruptcy, insolvency or other similar law for 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 it or relating to all or substantially all of its revenues and assets;
(f) an order of the court is made for 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 and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; ;
(g) a receiver, administrator, administrative receiver, liquidator, trustee or similar officer is legally and validly appointed over 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its propertythe Servicer's revenues and assets; or or
(h) a duly authorised officer of the Servicer shall admit in writing its inability that the Servicer is unable to pay its debts as they become due, file fall due within the meaning of Section 123(1) of the Insolvency Act 1986 or the Servicer makes a petition to take advantage of any applicable insolvency general assignment or reorganization statute, make an assignment trust for the benefit of or a composition with its creditors or voluntarily suspend suspends payment of its obligations with a view to the general readjustment or take any corporate action in furtherance rescheduling of any of the foregoing; thenits indebtedness, then so long as such Servicer Default shall not have been remediedremedied within the applicable grace period (if any), either the Trustee, Beneficiaries (or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Aggregate Certificateholders Ownership Interests, by notice then given in writing to while the Servicer (and to the Trustee if given by is TPF, the Investor CertificateholdersBeneficiaries) (a "Termination Notice"), may by unanimous vote resolve to terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and Deed by notice then given in and writing to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 ServicerFacilitator (a Termination Notice). Notwithstanding the foregoing, a delay in or failure of performance of matters referred to (a) in subsection 10.01(aparagraph (a) above, if capable of remedy, remain unremedied for a period of 10 five Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor 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.or
Appears in 1 contract
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 Servicer to make any payment, transfer or deposit (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV or shall fail to instruct the Trustee Securities Intermediary to make remit to the Agent on any day any amount required drawingto be remitted to the Agent on such day in respect of Yield, withdrawalNet Swap Amounts, Facility Fees or payment under any Credit Enhancement on or before the date occurring five Capital and such failure shall continue for three (3) Business Days after the date when such payment, transfer, deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreementamounts became due;
(b) the Servicer shall fail to deposit, or fail to pay, or fail to cause to be deposited or paid when due any other amount due hereunder, and any such failure shall continue for five (5) Business Days after the earlier of the date on which it has actual knowledge thereof or the date on which it has received written notice thereof by the Agent to the Servicer;
(c) failure on the part of the Seller or the Servicer to duly to observe or perform in any respect any other covenants or agreements of the Seller or the Servicer set forth in the Sale Agreement, this Agreement (Agreement, or any of the other than those set forth in subsections 3.03(g), (i) and (j))Transaction Documents, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which failure continues unremedied for a period of 60 thirty (30) days after the date on which written notice earlier of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and requiring the same to be remedied, shall have been given to the Servicer by the Trustee, knowledge thereof or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 Seller or the Servicer, as applicable, by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby; orAgent;
(d) any representation, warranty, certification or statement made by the Servicer under this Agreement or in any agreement, certificate, report, appendix, schedule or document furnished by the Seller or Servicer to the Agent pursuant to or in connection with this Agreement shall prove to have been false or misleading in any material respect as of the time made or deemed made (including by omission of material information necessary to make such representation, warranty, certification or statement not misleading);
(e) the entry of a decree or order of by a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law for the appointment of a conservator or conservator, receiver or liquidator for the Seller or the Servicer, in any insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings, or for the winding-winding up or liquidation of its their respective affairs, shall have been entered against and the Servicer and continuance of any such decree or order shall have remained unstayed and in force undischarged or unstayed effect for a period of 60 consecutive days; ;
(f) the consent by the Seller 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, voluntary liquidation or similar proceedings of or relating to the Seller or the Servicer or of or relating to all or substantially all of its their respective property; or the Seller 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 an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoingobligations; then, so long as 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 Certificateholders Ownership Interests, by notice then given in writing to the Servicer or
(and to the Trustee if given by the Investor Certificateholdersg) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used default by the Servicer in connection with the servicing performance of any term, provision or condition contained in any agreement under which any indebtedness of the Loans and Servicer in excess of $10 million was created or is governed, the related Receivableseffect of which is to cause any such indebtedness to become due prior to its stated maturity; provided, however, that or any such software indebtedness shall be used declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment or as a result of the Successor Servicer solely for voluntary sale or transfer of the purposes of servicing the Trust Assets. 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 property or assets) prior to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor 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 obligationsstated maturity date thereof.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Navistar Financial Retail Receivables Corporation)
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 (other than with respect to any Credit Balances) or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Indenture Trustee to make any required drawingsuch payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing 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;
(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 (other than those set forth in subsections 3.03(g), (i) and (j)), which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) an Adverse Effect and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by Holders of Notes evidencing not less than 10% of the aggregate unpaid principal amount of all 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 or delegate its duties under this Agreement, except as permitted by Sections 5.02 and 5.07;
(c) any representation, warranty or certification 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 an Adverse Effect on the rights of the Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which 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 Owner Trustee or the Indenture Trustee, or to the Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 5010% of the Certificateholders Ownership Interests aggregate unpaid principal amount of all 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 adversely affected therebyto which such representation, warranty or certification relates); or
(d) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law for Servicer shall consent to the appointment of a conservator bankruptcy trustee, conservator, receiver, liquidator or receiver or liquidator similar official in any bankruptcy proceeding or 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 and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or 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, voluntary liquidation 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, conservator, receiver, liquidator or similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its propertyaffairs, shall have been entered against the Servicer; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action obligations; Then, in furtherance the event of any of the foregoing; thenServicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating more than 50% of the Aggregate Certificateholders Ownership Interestsaggregate unpaid principal amount of all Notes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "Termination Notice"), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement Agreement; 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 subsection 7.02(c) to act as a Successor Servicer and in and receives an Officer's Certificate of the Servicer to the Receivableseffect 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 Transferors which would permit the Transferors at their option to acquire the Notes on the Distribution Date in the next calendar month. Any determination that an inaccuracy or other event, which with notice and/or The price for the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates Notes shall be made without regard equal to the availability sum of any Credit Enhancement or similar credit support device the amounts specified therefor with respect to each outstanding Series in the related Indenture Supplement. The Transferors shall notify the Indenture Trustee prior to the Record Date for the Distribution Date of the acquisition if it is exercising such Seriesright of first refusal. If the Transferors exercise such right of first refusal, the Transferors shall deposit the price into the Collection Account not later than 1:00 p.m., New York City time, on such Distribution Date in immediately available funds. The price shall be allocated and distributed to Noteholders in accordance with the terms of the Indenture and each Indenture Supplement. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been is 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 ServicerServicer (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 transfer of servicing rights and obligationsService 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 includinghereunder, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, including, without limitation, 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 Principal Account, and any Series Account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustServicer. The Servicer shall promptly within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 interests. Subject The Servicer shall pay to the immediately preceding sentence, the Servicer agrees to grant to the Indenture Trustee and any Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned reasonable transition expenses incurred by such person and the Servicer and which is used by the Servicer agents in connection with the servicing any transition of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 ServicerServicing. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(aparagraph (a) above for a period of 10 Business Days after the applicable grace period or under subsection 10.01(bparagraph (b) or (c) above for a period of 60 Business DaysDays 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, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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, any Credit Enhancement ProviderOwner Trustee, the each Transferor and the Holders of Investor Certificates any Series Enhancer 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: Transfer and Servicing Agreement (Conseco Finance Credit 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 (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or 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;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j))Agreement, which has a material adverse effect on the Investor Certificateholders Noteholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and requiring the same to be remedied, shall have been given to the Servicer by the Trustee, Issuer (or to the Servicer and the Indenture Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% on behalf of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(gIssuer), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement Issuer or similar credit support device) Noteholders 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 less than 50% of the Certificateholders Ownership Interests of any Series adversely affected therebyIssuer; or
(d) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or Insolvency Event with respect to 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoing; have occurred: then, so long as such Servicer Default shall not have been remedied, either the TrusteeIssuer may, or if directed by the Holders Indenture Trustee (acting at the direction of Investor Certificates evidencing Undivided Interests aggregating more Noteholders of not less than 5066 2/3% of the Aggregate Certificateholders Ownership InterestsOutstanding Dollar Principal Amount of the Notes for all Series), by delivery of a written notice then given in writing of termination to the Servicer (and to the Trustee if given by the Investor Certificateholders) Issuer (a "“Termination Notice"”), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such SeriesAgreement. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee Issuer pursuant to Section 10.025.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer; and, without limitation, the Trustee Issuer 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 transfer of servicing rights and obligations. The Servicer agrees to cooperate with the Trustee Issuer 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 Trust Assets Receivables provided for under this Agreement, including, without limitation, all authority over all Collections Table of Contents 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 Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds, Recoveries allocable and Interchange (if any) applicable to the TrustIssuer. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 5.01 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(a5.01(a) for a period of 10 additional Business Days or under subsection 10.01(b5.01(b) or (c) for a period of 60 additional Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor Certificates Issuer 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. For the avoidance of doubt, the determination of a Servicer Default shall be based solely on the provisions in this Section 5.01 and the occurrence of a material instance of noncompliance with the applicable servicing criteria specified in Item 1122(d) of Regulations AB shall not be determinative that a Servicer Default has occurred.
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 (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, withdrawal or payment under any Credit Enhancement on or before the date occurring five Business Days days after the date such payment, transfer, deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this AgreementAgreement or any applicable 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 thereof;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j))or any Supplement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability amount of any Credit Enhancement or similar credit support deviceEnhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests Invested Amount of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure8.7;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability amount of any Credit Enhancement or similar credit support deviceEnhancement) 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 less than 50% of the Certificateholders Ownership Interests Invested Amount of any Series adversely affected therebythereby and continues to materially adversely affect such 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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoingobligations; then, so long as 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 Certificateholders Ownership InterestsInvested Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such SeriesAgreement. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, 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, Excess Funding Account and any Series Account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable Insurance Proceeds and Net Interchange (if any) applicable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 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 reasonably necessary to protect its interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 under subsection 10.01(a10.1(a) for a period of 10 ten (10) Business Days after the applicable grace period or under subsection 10.01(b10.1(b) or (c) for a period of 60 sixty (60) Business Days, Days after the 95 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best 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, any Credit Enhancement Provider, the Transferor and the Holders of Investor 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 Bank Corporate 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 into the Collection Account (including with respect to bifurcation and remittance of Collections) as required by this Agreement which continues unremedied for a period of two Business Days;
(b) any failure on the part of the Servicer duly to observe or perform in any material respect any other than covenants or agreements of the Servicer set forth in this Agreement or the other Transaction Documents to which the Servicer is a party (including any material delegation of the Servicer’s duties that is not permitted by Section 6.1) and the same continues unremedied for a period of 30 days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer (with a copy to the Backup Servicer) by the Administrative Agent or any Lender Agent or the Trustee and (ii) the date on which a Responsible Officer of the Servicer acquires knowledge thereof;
(c) the failure of the Servicer to make any payment when due (after giving effect to any related grace period) with respect to any Credit Balancesrecourse debt or other obligations, which debt or other obligations are in excess of United States $5,000,000, 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) or to give instructions or notice an Insolvency Event shall occur with respect to the Trustee pursuant Servicer;
(e) the Originator or an Affiliate thereof shall cease to Article IV be the Servicer;
(f) the Originator permits (i) Consolidated Net Worth to be less than $300,000,000 or (ii) the ratio of Consolidated Funded Debt to instruct Consolidated Net Worth to exceed eight (8) times Consolidated Funded Debt (excluding trust preferred securities, preferred stock and subordinated convertible bonds) to Consolidated Net Worth (including trust preferred securities, preferred stock and subordinated convertible bonds);
(g) any failure by the Trustee Servicer to make deliver any required drawing, withdrawal, Servicing Report or payment under any Credit Enhancement other Required Reports hereunder on or before the date occurring five two Business Days after the date such payment, transfer, deposit, withdrawal or drawing or such instruction or notice report is required to be made or given, as the case may be, under the terms of this Agreement;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j)), which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(ch) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement Transaction Document or in any certificate (including without limitation any Monthly Servicer Report) 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 Investor Certificateholders of Administrative Agent, any Series (which determination shall be made without regard to Lender Agent or the availability of any Credit Enhancement or similar credit support device) Secured Parties and which continues to be incorrect in any material respect unremedied for a period of 60 30 days after the earlier to occur of (i) the date on which written notice of such failure, 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 or the Trustee and (ii) the date on which a Responsible Officer of the Servicer and the Trustee acquires knowledge thereof;
(i) any financial or other information reasonably requested by the Holders Administrative Agent, any Lender Agent or any Lender is not provided as requested within 30 days following the Servicer’s receipt of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests of any Series adversely affected therebysuch request; or
(dj) a the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of United States $7,500,000, individually or in the aggregate, and the continuance of such judgment, decree or order of a court or agency or supervisory authority having jurisdiction unsatisfied and in the premises in an involuntary case under effect for any present or future federal or state bankruptcy, insolvency or other similar law 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 and such decree or order shall have remained in force undischarged or unstayed for a period of more than 60 daysconsecutive days without a stay of execution; or the Servicer shall consent then notwithstanding anything herein to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoing; thencontrary, so long as 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 Undivided Interests aggregating more than 50% date of the Aggregate Certificateholders Ownership InterestsServicer Termination Notice (defined below), the Administrative Agent, by written notice then given in writing to the Servicer (and with a copy to the Trustee if given by the Investor Certificateholdersand Backup Servicer) (a "“Servicer Termination Notice"”), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor 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: Loan and Servicing Agreement (NewStar Financial, Inc.)
Servicer Defaults. If any one of the following events (a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement;
(b) failure on the part of the Servicer or any Co-Servicer duly to observe or perform in any respect any other of the covenants or agreements of the Servicer or Co-Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j)), or any 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 the availability of any Credit Enhancement or similar credit support device) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 the Holders of Investor Certificates evidencing Undivided Interests aggregating not less Beneficiaries representing in aggregate more than 50% one-half of the Certificateholders Ownership aggregate Investor Interests of any Applicable Series adversely affected thereby (copied to the Receivables Trustee) and continues to materially adversely affect such have a Material Adverse Effect on the interests of an Investor Certificateholders Beneficiary of any Applicable Series for such period; or ;
(b) delegation by the Servicer shall delegate or assign any Co-Servicer of its duties under this AgreementAgreement to any other entity, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failureClause 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 (including without limitation any Monthly Servicer Report) 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 interests of the Investor Certificateholders Beneficiaries of any Applicable Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 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 Undivided Interests aggregating not less Beneficiaries representing in aggregate more than 50% one-half of the Certificateholders Ownership aggregate Investor Interests of any Applicable Series adversely affected thereby; orthereby (copied to the Receivables Trustee) and continues to have a Material Adverse Effect on the interests of an Investor Beneficiary of any Applicable Series affected for such period;
(d) a decree the Servicer or order of a court any Co-Servicer shall consent to or agency or supervisory authority having jurisdiction in the premises in an involuntary case under take any present or future federal or state bankruptcy, insolvency or other similar law for 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 it or relating to all or substantially all of its revenues and assets or an order of the court is made for 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 the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvencyreceiver, readjustment of debtadministrator, marshalling of assets and liabilitiesadministrative receiver, voluntary liquidation 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 is legally and validly appointed;
(e) a duly authorised officer of the Servicer or the any Co-Servicer shall admit in writing its inability that the Servicer or such Co-Servicer is unable to pay its debts as they become due, file fall due within the meaning of Section 123(1) of the Insolvency Act 1986 or the Servicer or such Co-Servicer makes a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment general ▇▇▇▇▇▇▇ent for the benefit of or a composition with its creditors or voluntarily suspend suspends payment of its obligations with a view to the general readjustment or take any corporate action in furtherance rescheduling of any of the foregoing; thenits indebtedness, then so long as 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 Undivided Interests aggregating Beneficiaries representing in aggregate more than 50662/3% of the Aggregate Certificateholders Ownership InterestsInvestor Interest, by notice then given in writing to the Servicer or, if applicable, the Co-Servicer (and copied to the Trustee if given by the Investor CertificateholdersReceivables Trustee) (a "Termination NoticeTERMINATION NOTICE"), may terminate all of the rights and obligations of the Servicer and any Co-Servicer as Servicer (and which termination shall apply to each person acting as Co-Servicer if more than one Person is acting as Servicer) respectively under this Agreement and Agreement. For the avoidance of doubt, any Termination Notice given in and to accordance with this Clause 4.1 shall terminate the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage appointment of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by both the Servicer and any Co-Servicer regardless of such Termination Notice, and on which entity was the date that a Successor Servicer shall have been 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 ServicerDefault. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(bClause 4.1(a), (b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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 Trustee, any Credit Enhancement Provider, the Transferor, any Additional Transferor and the Holders of Investor Certificates each Beneficiary 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: Beneficiaries Servicing Agreement (Barclaycard Funding PLC)
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 (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV the terms of this Agreement or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement Supplement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this AgreementAgreement 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 (other than those set forth in subsections 3.03(g), (i) and (j)), 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 the availability of whether funds are then available pursuant to any Credit Enhancement or similar credit support deviceEnhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 5025% of the Certificateholders Ownership Interests aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 25% of the aggregate unpaid principal amount of all Series adversely affected thereby and continues to materially adversely affect which such Investor Certificateholders for such periodfailure relates); or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; providedSections 8.2 and 8.7, however, that failure on the part a Responsible Officer of the Servicer duly to observe or perform in any respect any covenants or agreements Trustee has actual knowledge of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) such delegation and which such delegation continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 unremedied for 15 days after the date (following such removal) on which written notice of such continuing material adverse effect thereof, requiring the same to 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 Undivided Interests aggregating not less than 5025% of the Certificateholders Ownership Interests aggregate unpaid principal amount of any Series adversely affected thereby, remedied such failureall Investor Certificates;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 of any Series or Class (which determination shall be made without regard to the availability of whether funds are then available pursuant to any Credit Enhancement or similar credit support deviceEnhancement) 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 less than 5025% of the Certificateholders Ownership Interests 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, 25% of the aggregate unpaid principal amount of all Series adversely affected therebyto which such representation, warranty or certification relates); or
(d) the Servicer shall fail 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 present Debtor Relief Law, or future federal or state bankruptcy, insolvency or other similar law 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 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 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 receiver other similar official of such Person or liquidator in for any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all substantial part of its property; , or the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an general assignment for the benefit of its creditors creditors; or voluntarily suspend payment such Person or any subsidiary of its obligations or take such Person shall have taken any corporate action in furtherance of any of the foregoingforegoing actions; then, in the event of any Servicer Default, so long as such the 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 Certificateholders Ownership Interestsaggregate unpaid principal amount of all Investor Certificates, by notice then given in writing to the Servicer (and to the Trustee and any Enhancement Provider entitled thereto pursuant to the relevant Supplement if given by the Investor Certificateholders) (a "“Termination Notice"”), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting Servicer, as Servicer) , under this Agreement and in and to the ReceivablesReceivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee is unable to obtain any bids from Eligible Servicers in accordance with subsection 10.2(c) to act as a Successor Servicer and receives an Officer’s Certificate of the 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 offer the Transferor the right at 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. Any determination that an inaccuracy or other event, which with notice and/or The purchase price for the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates Certificateholders’ Interest shall be made without regard equal to the availability sum of any Credit Enhancement or similar credit support device the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Transferor shall notify the Trustee prior to the Record Date for the related Distribution Date of the purchase if it is exercising such Seriesoption. If it exercises such option, the 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 Transferor, 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 such Termination Notice, and on the date that a Successor Servicer 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 ServicerServicer (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 transfer of servicing rights and obligationsrights. 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 including, without limitation, the transfer to such the Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, 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 Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustInsurance Proceeds. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 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 reasonably necessary appropriate to protect its interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 any delay in or failure of performance referred to in under subsection 10.01(a10.1(a) for a period of 10 five Business Days or under subsection 10.01(b10.1(b) or (c) for a period of 60 Business Daysdays (in addition to any period provided in subsection 10.1(a), (b) or (c)) 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, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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, each Rating Agency, any Credit Enhancement ProviderProvider entitled thereto pursuant to the relevant Supplement, the Holder of the Transferor Certificate and the Holders of Investor Certificates Certificateholders 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
Servicer Defaults. If any one of the following events (subject to the last paragraph of this Section 10.01, a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, withdrawal or payment under any Credit Enhancement on or before the later of (i) the date occurring five 10 Business Days after the date such payment, transfer, deposit, withdrawal or 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 (ii) three Business Days after written notice of such failure shall have been given to the Servicer;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j))Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests unpaid Initial Investor Interest of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 less than 50% of the Certificateholders Ownership Interests unpaid Initial Investor Interest of any Series adversely affected therebythereby and continues to materially adversely affect such 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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoingobligations; then, so long as 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 Certificateholders Ownership Interestsaggregate unpaid Initial Investor Interests of all outstanding Series, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations (other than unsatisfied obligations for acts or omissions during its tenure as Servicer) of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such SeriesAgreement. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, 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, Account or the Principal Account, Account and any Series Account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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. The Servicer being terminated shall bear all costs of a Service Transfer, including but not limited to those of the 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 delay in or failure of performance referred to in subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Daysdays, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor 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 Bankcard 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 (other than with respect to any Credit Balances) or to give notice or instructions or notice to the Trustee pursuant to Article IV or to instruct the Indenture Trustee to make any required drawingwithdrawal or payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or drawing 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, 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 (other than those set forth in subsections 3.03(g), (i) and (j)), 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 the availability of any Credit Enhancement Series, Class or similar credit support device) Tranche and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer Servicer, the Owner Trustee, the Indenture Trustee and the Trustee applicable Collateral Agent by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests aggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06;
(c) any representation, warranty or certification 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 an Adverse Effect on the rights of the Noteholders of any Series adversely affected thereby; Series, Class or Tranche and which 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 applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take obligations; or
(e) any corporate action in furtherance of any of the foregoing; then, so long as such other 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 Certificateholders Ownership Interests, by notice then given described in writing any Indenture Supplement;
(a) to the act as a Successor Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations receives an Officer's Certificate of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination effect that an inaccuracy or other event, the Servicer cannot in good faith cure the Servicer Default which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard gave rise to the availability Termination Notice, the Indenture Trustee shall assume the role of any Credit Enhancement or similar credit support device with respect to such SeriesSuccessor Servicer. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been 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; 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 transfer of servicing rights and obligationsService 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 includinghereunder, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Collateral provided for under this Agreement, including, without limitation, 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, Account for the Finance Charge Account, the Principal Account, and any Series Accountapplicable Asset Pool, or which shall thereafter be received with respect to the Trust AssetsCollateral, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall promptly within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets Collateral 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(aparagraph (a) above for a period of 10 Business Days after the applicable grace period or under subsection 10.01(bparagraph (b) or (c) above for a period of 60 Business DaysDays 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, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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, any Credit Enhancement Providerthe Owner Trustee, the applicable Collateral Agent and each Transferor and the Holders of Investor 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: Transfer and Servicing Agreement (Chase Manhattan Bank Usa)
Servicer Defaults. If any one Any of the following events (shall constitute a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer in its capacity as Servicer to make any payment, transfer or deposit (other than with respect required by any Transaction Document to any Credit Balances) be made by it 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 Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, transfer or deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement;which failure continues unremedied for one Business Day,
(b) failure on the part of the Servicer in its capacity as 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 other than those set forth in subsections 3.03(g), (i) and (j))Transaction Document, which failure has a material adverse effect on the Investor Certificateholders Holders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) Purchased Interest and which continues unremedied for a period of 60 30 days after the earlier of (i) the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 any Investor Certificateholder or Purchaser and (ii) the Holders date on which Servicer became aware of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby; orsuch failure,
(c) Servicer shall assign its duties under this Agreement, except as permitted by Sections 3.1(b) and 8.3,
(d) any Daily Report or Monthly Report shall fail to have been correct in any material respect when made or delivered, or shall not have been delivered when required under the terms hereof, and in either case such condition continues unremedied for a decree period of three Business Days,
(e) any other representation, warranty or order of a court certification made by Servicer in any Transaction Document or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency certificate or other similar law for the appointment of a conservator document or receiver or liquidator instrument delivered pursuant to any Transaction Document shall fail to have been correct in any insolvencymaterial respect when made or delivered, readjustment which failure has a materially adverse effect on the Certificateholders or any Purchased Interest and which materially adverse effect continues unremedied for a period of debt15 days after the earlier of (i) the date on which written notice of failure, marshalling of assets and liabilities or similar proceedings, or for requiring the winding-up or liquidation of its affairssame to be remedied, shall have been entered against the given to Servicer by Trustee or to Servicer and Trustee by any Investor Certificateholder or Purchaser and (ii) the date on which Servicer became aware of such decree or order failure, or
(f) any Bankruptcy Event shall have remained in force undischarged or unstayed for a period of 60 days; or occur with respect to Servicer. In 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage event of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoing; thenServicer Default, so long as such Servicer Default shall not have been remedied, either Trustee may (and, at the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% direction of the Aggregate Certificateholders Ownership InterestsRequired Investors, shall), by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of (but not less than all) the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables, the Related Transferred Assets and the proceeds thereof. Any determination that an inaccuracy or other event, which with Servicer shall provide notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device Default in accordance with respect to such Series. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 Servicer10.3. Notwithstanding the foregoing, a delay in or failure of in performance referred to in subsection 10.01(a(a) for a period of 10 ten Business Days after the applicable grace period, or under in subsection 10.01(b(b) or (cd) for a period of 60 Business Days30 days after the applicable grace period, shall not constitute a Servicer Default if such the delay or failure could not be have been prevented by the exercise of reasonable diligence by the Servicer and such the delay or failure was caused by an act of God or the public enemy, riots, acts of declared or undeclared war, public disorder, rebellion, riot or sabotageacts of terrorism, epidemics, flood, embargoes, weather, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages earthquakes 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 the Transaction Documents, and the Servicer shall provide the promptly give Trustee, any Credit Enhancement Provider, the each Agent and Transferor and the Holders of Investor Certificates with an Officer's Certificate giving prompt notice notifying them of such its failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligationsdelay.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Ameriserve Food Distribution Inc /De/)
Servicer Defaults. If any one of the following events (a "“Servicer Default"”) shall occur and be continuing:
(a) any failure by on the part of the Servicer to deliver the Receivables Activity Reports required under Section 3.07(c), to make any payment, transfer or deposit (other than with respect to any Credit Balances) deposit, or to give instructions or to give notice to the Trustee pursuant to Article IV Issuer or to instruct the Indenture Trustee to make any required drawingsuch payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement;
(b) (i) failure on the part of the Servicer duly to observe and perform its covenants to give payment instructions to Obligors pursuant to Section 3.05(f); to segregate Pool Collections pursuant to Section 3.05(g), to provide records pursuant to Section 3.07, to file financing or continuation statements provided to it pursuant to Section 3.02, or breach by the Servicer of any of its negative covenants set forth in Section 3.06, which failure or breach continues unremedied for ten calendar days, or (ii) 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 (other than those set forth in subsections 3.03(g), (i) and (j))Agreement, which failure has a material adverse effect Material Adverse Effect on the Investor Certificateholders rights of the holders of any Series of Notes (which determination shall be made determined without regard giving effect to the availability of any Credit Enhancement or similar third-party credit support deviceenhancement) and which continues unremedied for a period of 60 days 30 days, in each case, after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and requiring the same to be remedied, shall have has been given to the Servicer by the TrusteeIssuer, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% Issuer on behalf of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; Majority Investors, or the Servicer shall assign or delegate or assign its duties under this Agreement, Agreement except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support deviceSections 3.01(b) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure7.02;
(c) any representation, warranty or certification made by the Servicer in this Agreement or in any Supplement other Transaction Document or in any certificate (including without limitation any Monthly Servicer Report) delivered pursuant to this Agreement or any Supplement shall prove proves to have been incorrect when made, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues to be incorrect in any material respect when made, which failure has a Material Adverse Effect on the rights of the holders of any Series of Notes (determined without giving effect to any third-party credit enhancement) and which failure continues unremedied for a period of 60 30 days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have has been given to the Servicer by the TrusteeIssuer, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% Issuer on behalf of the Certificateholders Ownership Interests of any Series adversely affected therebyMajority Investors; or
(d) a decree or order an Event of a court or agency or supervisory authority having jurisdiction Bankruptcy occurs with respect to the Servicer; then, in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage event of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoing; thensuch Servicer Default, so long as such the Servicer Default shall not have been remedied, either remedied the TrusteeIndenture Trustee may, or at the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% direction of the Aggregate Certificateholders Ownership InterestsMajority Investors, the Indenture Trustee shall, by written notice then given in writing to the Servicer (and to the Indenture Trustee if given by the Investor CertificateholdersMajority Investors) (a "“Termination Notice"”), may terminate all or any part of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(bclause (a), (b) or (c) for a period of 60 10 Business Days, 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, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages floods or similar causescauses not within the Servicer’s control. The preceding sentence shall does 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.
(e) The Indenture Trustee acting at the direction of the Majority Investors shall be entitled, by giving a Termination Notice to the Servicer, to terminate all or any part of the rights and obligations of CMSC as Servicer if:
(i) the Consolidated Net Worth of PHH on the last day of any fiscal quarter is less than the sum of (i) $500,000,000 plus (ii) 50% of Consolidated Net Income, if positive, for each fiscal quarter after September 30, 1999; or
(ii) PHH Indebtedness less Cash Equivalents (owned by PHH or any of its Consolidated Subsidiaries and free of liens (other than liens securing Indebtedness)) exceeds six times Consolidated Net Worth; or
(iii) PHH fails to maintain a long-term unsecured debt rating of at least “BBB-” by Standard & Poor’s and “Baa3” by ▇▇▇▇▇’▇’ provided that if PHH has no outstanding long-term unsecured debt, then a shadow rating of PHH may be used to determine compliance with the foregoing rating requirement. 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 9.03, all authority and power of the Servicer under this Agreement (or, in the case of a partial transfer, such authority and power and a proportional portion of the Servicing Fee as is described in the Termination Notice) shall pass to and be vested in the Successor Servicer (a “Service Transfer”); and 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 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 authority of the Servicer to service the Pool Receivables provided for under this Agreement, including (to the extent transferred) all authority over all Pool Collections that on the date of transfer are held by the Servicer for deposit, or which have been deposited by the Servicer in the Collection Account, or which thereafter are received with respect to the Receivables, and in assisting the Successor Servicer. The Servicer shall provide within 20 Business Days of such Termination Notice transfer its electronic records relating to the TrusteePool 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 9.01 requires the Servicer to disclose to the Successor Servicer information of any Credit Enhancement Providerkind that the Servicer deems to be confidential, the Transferor Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Holders of Investor Certificates with an Officer's Certificate giving prompt notice of such failure Servicer deems reasonably necessary to protect its interests. The Servicer being terminated (or delay by it, together with a description replaced in part) shall bear all costs of the cause appointment of such failure or delay a Successor Servicer hereunder, including but not limited to those of the Indenture Trustee reasonably allocable to specific employees and its efforts so to perform its obligationsoverhead, legal fees and expenses, accounting and financial consulting fees and expenses, and costs of amending the Transaction Documents, if necessary.
Appears in 1 contract
Servicer Defaults. If any one of the following events (a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement;
(b) failure on the part of the Servicer or any Co-Servicer duly to observe or perform in any respect any other of the covenants or agreements of the Servicer or Co-Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j)), or any 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 the availability of any Credit Enhancement or similar credit support device) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 the Holders of Investor Certificates evidencing Undivided Interests aggregating not less Beneficiaries representing in aggregate more than 50% one-half of the Certificateholders Ownership aggregate Investor Interests of any Applicable Series adversely affected thereby (copied to the Receivables Trustee) and continues to materially adversely affect such have a Material Adverse Effect on the interests of an Investor Certificateholders Beneficiary of any Applicable Series for such period; or ;
(b) delegation by the Servicer shall delegate or assign any Co-Servicer of its duties under this AgreementAgreement to any other entity, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failureClause 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 (including without limitation any Monthly Servicer Report) 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 interests of the Investor Certificateholders Beneficiaries of any Applicable Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 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 Undivided Interests aggregating not less Beneficiaries representing in aggregate more than 50% one-half of the Certificateholders Ownership aggregate Investor Interests of any Applicable Series adversely affected thereby; orthereby (copied to the Receivables Trustee) and continues to have a Material Adverse Effect on the interests of an Investor Beneficiary of any Applicable Series affected for such period;
(d) a decree the Servicer or order of a court any Co-Servicer shall consent to or agency or supervisory authority having jurisdiction in the premises in an involuntary case under take any present or future federal or state bankruptcy, insolvency or other similar law for 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 it or relating to all or substantially all of its revenues and assets or an order of the court is made for 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 the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvencyreceiver, readjustment of debtadministrator, marshalling of assets and liabilitiesadministrative receiver, voluntary liquidation 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 is legally and validly appointed;
(e) a duly authorised officer of the Servicer or the any Co-Servicer shall admit in writing its inability that the Servicer or such Co-Servicer is unable to pay its debts as they become due, file fall due within the meaning of Section 123(1) of the Insolvency ▇▇▇ ▇▇▇▇ or the Servicer or such Co-Servicer makes a petition to take advantage of any applicable insolvency or reorganization statute, make an general assignment for the benefit of or a composition with its creditors or voluntarily suspend suspends payment of its obligations with a view to the general readjustment or take any corporate action in furtherance rescheduling of any of the foregoing; thenits indebtedness, then so long as 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 Undivided Interests aggregating Beneficiaries representing in aggregate more than 50662/3% of the Aggregate Certificateholders Ownership InterestsInvestor Interest, by notice then given in writing to the Servicer or, if applicable, the Co-Servicer (and copied to the Trustee if given by the Investor CertificateholdersReceivables Trustee) (a "Termination NoticeTERMINATION NOTICE"), may terminate all of the rights and obligations of the Servicer and any Co-Servicer as Servicer (and which termination shall apply to each person acting as Co-Servicer if more than one Person is acting as Servicer) respectively under this Agreement and Agreement. For the avoidance of doubt, any Termination Notice given in and to accordance with this Clause 4.1 shall terminate the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage appointment of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by both the Servicer and any Co-Servicer regardless of such Termination Notice, and on which entity was the date that a Successor Servicer shall have been 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 ServicerDefault. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(bClause 4.1(a), (b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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 Trustee, any Credit Enhancement Provider, the Transferor, any Additional Transferor and the Holders of Investor Certificates each Beneficiary 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: Beneficiaries Servicing Agreement (Barclaycard Funding PLC)
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 (other than with respect to any Credit Balances) or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawingsuch payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five three Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this AgreementAgreement or any Supplement;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j)), or any Supplement which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and Certificateholders, which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues to be incorrect in any material respect 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 the CP Issuer if the Holder of the Variable Funding Certificate is adversely affected thereby, or by the Holders of Investor Certificates evidencing Undivided Interests in the Trust aggregating not less than 50% of the Invested Amount of any Series adversely affected thereby; or the Servicer shall assign its duties under this Agreement, except as permitted by Sections 8.02, 8.05 and 8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement, 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 Certificateholders Ownership and which material adverse effect continues for a period of 30 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 CP Issuer or by the Holders of Investor Certificates evidencing Undivided Interests in the Trust aggregating not less than 50% of the Invested Amount of any Series adversely affected thereby; or
(d) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall voluntarily seek, consent to or acquiesce in the appointment benefit or benefits of any Debtor Relief Law or becomes a conservator party to (or receiver be made the subject of) any proceeding provided for under any Debtor Relief Law, other than as creditor or liquidator claimant, and in any insolvencythe event such proceeding is involuntary, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all petition instituting same is not dismissed within 60 days of its propertyfiling; or then, in the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage event of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoing; thenServicer Default, so long as such the Servicer Default shall not have been remedied, either (i) the Trustee, (ii) the CP Issuer (but not if the CP Issuer is a subsidiary or other Affiliate of the Servicer) or the Collateral Agent or (iii) the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Aggregate Certificateholders Ownership InterestsInvested Amount of any Series materially and adversely affected thereby, by notice then given in writing to the Servicer and the Transferor (with a copy thereof to each Rating Agency) and to the Trustee if given by a Person other than the Investor Certificateholders) Trustee (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or Receivables and the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Seriesproceeds thereof. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement and each Supplement shall pass to and be vested in the a Successor ServicerServicer (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 transfer of servicing rights and obligationsService Transfer. The Servicer agrees to cooperate with the Trustee Trustee, the Transferor and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables and the Related Security provided for under this Agreement, 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, 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 Trust AssetsReceivables and the Related Security, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustServicer. The Servicer shall promptly transfer transfer, to the extent it is permitted by applicable law to do so, its electronic records or electronic copies thereof relating to the Trust Assets Receivables and the Related Security to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer transfer, to the extent it is permitted by applicable law to do so, to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Trust Assets Receivables and the Related Security in the manner and at such times as the Successor Servicer shall reasonably requestrequest and shall, to the extent not prohibited by licensing restrictions, provide access to or copies of computer software, including by means of sublicensing arrangements if applicable, to the extent necessary for the continued servicing of the Receivables and the Related Security; provided, however, that the Servicer shall not be required, to the extent it has an ownership interest in any electronic records, computer software or licenses, to transfer, assign, set-over or otherwise convey such ownership interest(s) to the Successor Servicer. The Servicer shall provide the Successor Servicer with access to any computer hardware in its possession for a reasonable time after the Servicer's termination to the extent necessary for the uninterrupted servicing of the Receivables. Notwithstanding the foregoing, the Servicer shall not be required to provide such access, whether with respect to computer hardware or software, if to provide such access would violate applicable contractual restrictions (including pursuant to any licensing arrangements to which ▇▇▇▇▇▇ or any Designated Subsidiary is a party); Provided, however, that ▇▇▇▇▇▇ shall use all reasonable efforts and act in good faith in seeking consents or waivers necessary to permit the Successor Servicer to have such access. 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 Servicerinterest. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(aunder Section l0.0l(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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 Act of God or God, the public enemy, acts of declared or undeclared war, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages floods or similar causescauses and no funds have been remitted to ▇▇▇▇▇▇ or the Transferor. The preceding sentence shall not relieve the Servicer from using its best reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and each Supplement, and the Servicer shall provide the Trustee, any Credit Enhancement Providerthe Rating Agencies, the Transferor Transferor, the CP Issuer and the Holders of Investor Certificates Certificateholders 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 to so to perform its obligations. The Servicer shall immediately notify the Trustee in writing of any Servicer Default. In connection with any Service Transfer, all reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the Receivables and the Related Security to the Successor Servicer and amending this Agreement to reflect such succession as Successor Servicer pursuant to this Section 10.01 and Section 10.02 shall be paid by the Servicer upon presentation of reasonable documentation of such costs and expenses.
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 (other than with respect to any Credit Balances) or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Indenture Trustee to make any required drawingsuch payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five (5) Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing 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;
(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 (other than those set forth in subsections 3.03(g), (i) and (j)), which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) an Adverse Effect and which continues unremedied for a period of 60 sixty (60) days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by Holders of Notes evidencing not less than 10% of the Outstanding Amount (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of the Notes 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 5.02, 5.05 and 5.07;
(c) any representation, warranty or certification 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 an Adverse Effect (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which Adverse Effect continues for a period of 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, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 5010% of the Certificateholders Ownership Interests Outstanding Amount (or, with respect to any such representation, warranty or certification that does not relate to all Series, 10% of any the aggregate unpaid principal amount of all Series adversely affected thereby; orto which such representation, warranty or certification relates);
(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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 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 (60) days; or 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or the Servicer shall admit in writing its inability to pay its debts as they become duepay
(e) any other Servicer Default described in the related Indenture Supplement; then, file a petition to take advantage in the event of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoing; thenServicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating more than 50% of the Aggregate Certificateholders Ownership InterestsOutstanding Amount, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "Servicer Termination Notice"), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and Agreement; provided, however, if within sixty (60) days of receipt of a Servicer Termination Notice (1) the Indenture Trustee does not receive any bids from Eligible Servicers in and accordance with subsection 7.02(c) to act as a Successor Servicer, (2) receives an Officer's Certificate of the Servicer to the Receivableseffect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Servicer Termination Notice, and (3) the Indenture Trustee is legally unable to act as Successor Servicer, then the Indenture Trustee shall grant a right of first refusal to the Transferor which would permit the Transferor at its option to acquire the Notes on the Payment Date in the next calendar month. Any determination that an inaccuracy or other event, which with notice and/or The price for the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates Notes shall be made without regard equal to the availability sum of any Credit Enhancement or similar credit support device the amounts specified therefor with respect to each outstanding Series in the related Indenture Supplement. The Transferor shall notify the Indenture Trustee prior to the Record Date for the Payment Date of the acquisition if it is exercising such Seriesright of first refusal. If the Transferor exercises such right of first refusal, the Transferor shall deposit the amount of the purchase price into the Collection Account not later than 1:00 p.m., New York City time, on such Payment Date in immediately available funds. The amount of the purchase price shall be allocated and distributed to Noteholders in accordance with the terms of the Indenture and each Indenture Supplement. After receipt by the Servicer of such a Servicer Termination Notice, and on the date that a Successor Servicer shall have been is 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 ServicerServicer (a "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 transfer of servicing rights and obligationsServicing 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 includinghereunder, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, including, without limitation, 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 Principal Account, and any Series Account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustServicer. The Servicer shall promptly within twenty (20) Business Days transfer its -47- 52 electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(aparagraph (a) above for a period of 10 ten (10) Business Days after the applicable grace period or under subsection 10.01(bparagraph (b) or (c) above for a period of 60 sixty (60) Business DaysDays 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, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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, any Credit Enhancement ProviderOwner Trustee, the each Transferor and the Holders of Investor Certificates any Series Enhancer 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: Transfer and Servicing Agreement (Advanta Business Recievables Corp)
Servicer Defaults. If any one of the following events (a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (other than with respect to any Credit Balances) or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Indenture Trustee to make any required drawingsuch payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five (5) Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing 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;
(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 (other than those set forth in subsections 3.03(g), (i) and (j)), which has a material adverse effect on or the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) Facilities Management Agreement and which continues unremedied for a period of 60 sixty (60) days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by Holders of Notes evidencing not less than 10% of the aggregate unpaid principal amount of all 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 6.02 and 6.07;
(c) any representation, warranty or certification 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 an Adverse Effect and which Adverse Effect continues for a period of 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, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 5010% of the Certificateholders Ownership Interests aggregate unpaid principal amount of all 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 adversely affected therebyto 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 an action seeking a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 for the winding-up or liquidation of its affairs, shall have been entered commenced against the Servicer and 52 such decree or order action shall have remained in force undischarged or unstayed for a period of 60 days; sixty (60) days or the Servicer an order or decree providing for such relief shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its propertyhave 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action obligations; then, in furtherance the event of any of the foregoing; thenServicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating more than 50% a majority of the Aggregate Certificateholders Ownership Interestsaggregate unpaid principal amount of all Notes Outstanding, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "Termination NoticeTERMINATION NOTICE"), may terminate all but not less than all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement Agreement, the Indenture and each Indenture Supplement; PROVIDED, HOWEVER, if within sixty (60) days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with SECTION 8.02(c) to act as a Successor Servicer and receives an Officer's Certificate of the Servicer to the Receivableseffect 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 Transferor which would permit the Transferor at its option to purchase the Notes on the Distribution Date in the next calendar month. Any determination that an inaccuracy or other event, 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 notice and/or a copy of any Termination Notice given to the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates and the Owner Trustee pursuant to this SECTION 8.01. The purchase price for the Notes purchased pursuant to the preceding paragraph shall be made without regard equal to the availability sum of any Credit Enhancement or similar credit support device the amounts specified therefor with respect to each outstanding Series in the related Indenture Supplement. The Transferor shall notify the Indenture Trustee prior to the Record Date for the Distribution Date of the purchase if it is exercising such Seriesright of first refusal. If the Transferor exercises such right of first refusal, the Transferor shall deposit the purchase price into the Collection Account not later than 11:00 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 Noteholders in accordance with the terms of the Indenture and each Indenture Supplement. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 10.02SECTION 8.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor ServicerServicer (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 transfer of servicing rights and obligationsService 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 includinghereunder, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, including, without limitation, 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 Principal Account, and any Series Account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustServicer. The Servicer shall promptly within twenty (20) Business Days transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(aparagraph (a) above for a period of 10 ten (10) Business Days after the applicable grace period or under subsection 10.01(bparagraph (b) or (c) above for a period of 60 sixty (60) Business DaysDays 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, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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, any Credit Enhancement Providerthe Issuer, the each Transferor and the Holders of Investor Certificates any Series Enhancer 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: 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 (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, withdrawal or payment under any Credit Enhancement on or before the date occurring five Business Days days after the date such payment, transfer, deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this AgreementAgreement or any applicable 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 thereof;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j))or any Supplement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability amount of any Credit Enhancement or similar credit support deviceEnhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests Invested Amount of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure8.7;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability amount of any Credit Enhancement or similar credit support deviceEnhancement) and which continues to be incorrect in any 100 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 less than 50% of the Certificateholders Ownership Interests Invested Amount of any Series adversely affected therebythereby and continues to materially adversely affect such 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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoingobligations; then, so long as 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 Certificateholders Ownership InterestsInvested Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such SeriesAgreement. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and 101 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, 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, Excess Funding Account and any Series Account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable Insurance Proceeds and Net Interchange (if any) applicable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 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 reasonably necessary to protect its interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 under subsection 10.01(a10.1(a) for a period of 10 ten (10) Business Days after the applicable grace period or under subsection 10.01(b10.1(b) or (c) for a period of 60 sixty (60) Business Days, Days after the 102 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best 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, any Credit Enhancement Provider, the Transferor and the Holders of Investor 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 Bank Corporate 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 (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV Deal Agent as required by this Agreement, or to instruct the Trustee to make deliver any required drawing, withdrawal, Monthly Report or payment under any Credit Enhancement other Required Reports hereunder on or before the date occurring five three Business Days after the date such payment, transfer, deposit, withdrawal or drawing or such instruction or notice or report is required to be made or given, as the case may be, under the terms of this Agreement;
(b) any 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 (other than those set forth in subsections 3.03(g), (i) and (j)), which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and Purchasers, which continues unremedied for a period of 60 30 days after the first to occur of (i) the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Trustee, or to Deal Agent and (ii) the date on which the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failurebecomes aware thereof;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) Purchasers and which continues to be incorrect in any material respect unremedied for a period of 60 30 days after the first to occur of (i) the date on which written notice of such failure, incorrectness requiring the same to be remedied, remedied shall have been given to the Servicer by the Trustee, or Deal Agent and (ii) the date on which the Servicer becomes aware thereof;
(d) an Insolvency Event shall occur with respect to the Servicer Servicer;
(e) an Insolvency Event shall occur with respect to the Subservicer and the Trustee Seller fails to replace the Subservicer with the Backup Servicer or other acceptable party within 30 days;
(f) any material delegation of the Servicer's or Subservicer's duties which is not permitted by Section 7.1;
(g) any financial or Asset information reasonably requested by the Holders Deal Agent or the Purchaser as provided herein is not reasonably provided as requested;
(h) the rendering against the Servicer of Investor Certificates evidencing Undivided Interests aggregating not less than 50% a final judgment, decree or order for the payment of money in excess of U.S. $1,000,000 and the continuance of such judgment, decree or order unsatisfied and in effect for any period of 61 consecutive days without a stay of execution;
(i) the failure of the Certificateholders Ownership Interests Servicer to make any payment due with respect to aggregate recourse debt or other obligations with an aggregate principal amount exceeding U.S. $1,000,000 or the occurrence of any Series adversely affected therebyevent or condition which would permit acceleration of such recourse debt or other obligations if such event or condition has not been waived;
(j) any change in the management of the Servicer relating to the positions of President, CEO, Chairman of the Board and Executive Vice President; or
(dk) a decree or order of a court or agency or supervisory authority having jurisdiction any change in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law for the appointment control 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 and such decree which takes the form of either a merger or order shall have remained consolidation in force undischarged or unstayed for a period of 60 days; or which the Servicer shall consent to is not the appointment of a conservator or receiver or liquidator in any insolvencysurviving entity, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoing; then, so long as 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 Certificateholders Ownership InterestsDeal Agent, by written notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor 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: Receivables Purchase Agreement (Bankvest Capital Corp)
Servicer Defaults. (a) If any one of the following events (a "“Servicer Default"”) shall occur and be continuing:
(ai) any failure by the Servicer to make any payment, transfer or deposit (other than with respect to any Credit Balances) or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Indenture Trustee to make any required drawingsuch payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing 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 Master Indenture or any related Indenture Supplement;
(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 (other than those set forth in subsections 3.03(g), (i) and (j)), which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) an Adverse Effect and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by Holders of Notes evidencing not less than 10% of the principal balance of the Outstanding Notes of all 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);
(iii) or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 5.02, 5.05 and 5.07;
(iv) any representation, warranty or certification 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 an Adverse Effect on the rights of the Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which 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 Owner Trustee or the Indenture Trustee, or to the Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 5010% of the Certificateholders Ownership Interests principal balance of the Outstanding Notes of all Series (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 adversely affected thereby; orto which such representation, warranty or certification relates);
(dv) 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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 Debtor Relief Law; or
(vi) with respect to a particular Series of Notes, any other Servicer Default described in the related Indenture Supplement. Notwithstanding the foregoing, a delay in or failure of performance referred to in Section 7.01(a)(i) for a period of ten Business Days after the applicable insolvency grace period or reorganization statuteunder Section 7.01(a)(ii) or (a)(iii) for a period of 60 Business Days after the applicable grace period, make 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 assignment for act of God or the benefit public enemy, acts of declared or undeclared 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 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 Trustees, each Transferor and any Series Enhancer with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description of its creditors or voluntarily suspend payment efforts so to perform its obligations.
(b) Upon the occurrence of its obligations or take any corporate action in furtherance of any of the foregoing; thena Servicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating more than 50% of the Aggregate Certificateholders Ownership Interestsprincipal balance of the Outstanding Notes of all Series (or, with respect to any such Servicer Default that does not relate to all Series, 50% of the principal balance of the Outstanding Notes of all Series to which such Servicer Default relates), by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "“Termination Notice"”), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and with respect to all Notes or the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders Notes of one or more Series affected Series; provided, however, if within 60 days of Certificates receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with Section 7.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the 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 Transferor which would permit the Transferor at its option to acquire the Notes on the Distribution Date in the next calendar month. The price for the Notes shall be made without regard equal to the availability sum of any Credit Enhancement or similar credit support device the amounts specified therefor with respect to each outstanding Series in the related Indenture Supplement. The Transferor shall notify the Indenture Trustee prior to the Record Date for the Distribution Date of the acquisition if it is exercising such Seriesright of first refusal. If the Transferor exercises such right of first refusal, the Transferor shall deposit the price into the Collection Account not later than 1:00 p.m., New York City time, on such Distribution Date in immediately available funds. The price shall be allocated and distributed to Noteholders in accordance with the terms of the Master Indenture and each Indenture Supplement. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 10.027.02, all authority and power of the Servicer under this Agreement with respect to all Notes or the Notes of one or more affected Series shall pass to and be vested in the Successor ServicerServicer (each, 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 transfer of servicing rights and obligationsService 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 includinghereunder, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, including, without limitation, 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 Principal Account, and any Series Account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustServicer. The Servicer shall promptly within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor 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
Servicer Defaults. If any one of the following events (a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (other than with respect to any Credit Balances) or to give instructions advice or notice to the Trustee receivables trustee pursuant to Article IV an agreed schedule of collections and distributions or to instruct advise the Trustee receivables trustee to make any required drawing, withdrawal, withdrawal or payment under pursuant to this Deed or any Credit Enhancement on or before the date occurring five other Transaction Document; these events will be considered failures if they do not happen within 5 Business Days after the date such payment, transfer, deposit, withdrawal or drawing or such instruction or notice is required that they were supposed to be made or given, as the case may be, happen under the terms of this AgreementDeed or any other Transaction Document;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j)), Deed or any Transaction Document which has a material adverse effect Material Adverse Effect on the interests of the Investor Certificateholders Beneficiaries of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) Outstanding Issuance and which failure, if capable of remedy, continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is (except in relation to a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe give advice or perform in notice to the Receivables Trustee pursuant to an agreed schedule of collections and allocations or to advise the Receivables Trustee to make any respect any covenants required drawing, withdrawal or agreements of payment pursuant to the Servicer set forth in subsections 3.03(g), (iTransaction Documents which shall be 5 Business Days) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues to be incorrect in any material respect for a period of 60 days more 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 Receivables Trustee, or to the Servicer and the Receivables Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% Beneficiary or Investor Beneficiaries holding 50 per cent. or more of the Certificateholders Ownership Investor Interests in respect of any Series Outstanding Issuance adversely affected thereby; orthereby and continues to have a Material Adverse Effect on the interests of such Investor Beneficiary in respect of such Outstanding Issuance for such period;
(c) delegation by the Servicer of its duties under this Deed to any other entity, except as permitted by Clause 10.6;
(d) a decree any relevant representation, warranty or order of a court certification made by the Servicer in this Deed or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 certificate delivered pursuant hereto proves to have been entered against incorrect when made, which has a Material Adverse Effect on the Servicer interests of the Investor Beneficiaries in respect of any Outstanding Issuance and such decree or order shall have remained continues to be incorrect in force undischarged or unstayed any material respect for a period of 60 days; days or more 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 Receivables Trustee or to the Servicer and the Receivables Trustee by the Investor Beneficiary or Investor Beneficiaries holding 50 per cent. or more of the Aggregate Investor Interest in respect of any Outstanding Issuance adversely affected thereby and continues to have a Material Adverse Effect on the interests of the Investor Beneficiary in respect of any Outstanding Issuance affected for such period;
(e) the 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 liabilitiesadministrative receiver, voluntary liquidation liquidator, trustee or similar proceedings officer of or relating to the Servicer or of it or relating to all or substantially all of its propertyrevenues and assets or proceedings are initiated against the Transferor under any applicable liquidation, insolvency, composition, re-organisation or similar laws for its winding-up, dissolution, administration or re-organisation (except for a solvent re-organisation) and such proceedings are not discharged within 60 days or a receiver, administrator, administrative receiver, liquidator, trustee or similar officer of it or relating to all or substantially all of its revenues and assets is legally and validly appointed and such appointment is not discharged within 14 days; or or
(f) a director of the Servicer shall admit in writing its inability that the Servicer is unable to pay its debts as they become due, file fall due within the meaning of Section 123(1) of the Insolvency ▇▇▇ ▇▇▇▇ or the Servicer makes a petition to take advantage of any applicable insolvency or reorganization statute, make an general assignment for the benefit of or a composition with its creditors or voluntarily suspend suspends payment of its obligations with a view to the general readjustment or take rescheduling of its indebtedness,
(g) if the Regulation AB Assessment Rules apply, any corporate action default set out in furtherance of any of the foregoing; then, clause 9.4(c)(v). then so long as such Servicer Default shall not have been remedied, either the Receivables Trustee, if directed by the Investor Beneficiaries, or the Holders of Investor Certificates evidencing Undivided Interests aggregating Beneficiaries representing in aggregate more than 5066 2/3% of the Combined Aggregate Certificateholders Ownership InterestsInvestor Interest, in each case by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination NoticeSERVICER TERMINATION NOTICE"), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 ServicerDeed. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(aparagraph (a) above for a period of 10 London Business Days or under subsection 10.01(bparagraphs (b), (c) or (cd) for a period of 60 London Business Days, Days (in addition to any period provided in (a) to (d) above) 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 enemyGod, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages cuts or similar causes. The preceding sentence shall not relieve the Servicer from using its best reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement Deed and any Transaction Document and the Servicer shall provide the Trustee, Receivables Trustee with an Officer's Certificate (copied to any Credit Enhancement Provider, the Transferor and the Holders of Investor Certificates with an Officer's Certificate Beneficiary) 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: Receivables Trust Deed and Servicing Agreement (Turquoise Receivables Trustee 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 (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV or to deliver any reports to the Trustee and the Certificateholders pursuant to Article V or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement on or before the date occurring five Enhancement, in each case, within one Business Days Day after the date that such payment, transfer, deposit, withdrawal or drawing drawing, such report or such instruction or notice is required to be made made, delivered or given, as the case may be, under the terms of this Agreement;
(b) Agreement or any Supplement; 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 (other than those set forth in subsections 3.03(g), (i) and (j)), which has a material adverse effect on the Investor Certificateholders of or any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and Supplement which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such periodsixty (60) days; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer Report) 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) deemed made or delivered and which continues to be incorrect in any material respect for a period of 60 days after sixty (60) days; the date on which written notice Servicer shall consent to the appointment of such failurea conservator or receiver or liquidator in any insolvency, requiring the same to be remediedreadjustment of debt, shall have been given marshalling of assets and liabilities or similar proceedings of or relating to the Servicer by the Trustee, or of or relating to the Servicer and the Trustee by the Holders all or substantially all of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests of any Series adversely affected therebyits property; or
(d) or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of obligations; the Servicer assigns any of its duties under this Agreement, except as permitted by the foregoingterms of this Agreement; or the Servicer fails to maintain a tangible net worth of at least $250,000; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Requisite Certificateholders (determined without giving effect to Investor Certificates evidencing Undivided Interests aggregating more than 50% for such Series held by the Transferor or any of the Aggregate Certificateholders Ownership Interestsits Affiliates) for all Series, by notice then given in writing to the Servicer Servicer, (and to the Trustee if given by the Investor Certificateholders) (a "Servicer Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such SeriesAgreement. After receipt by the Servicer of such Servicer Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, 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 Account or any Series Account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable Insurance Proceeds applicable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 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 reasonably necessary to protect its interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under the Credit any Enhancement with respect to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor 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
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 (other than with respect to any Credit Balances) or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawingsuch payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this AgreementAgreement or any Supplement on or before three Business Days after the date such payment, transfer or deposit is required to be made;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j)), which or any Supplement that has a material adverse effect on the Investor Certificateholders holder of the Transferor Certificate or the Certificates of any Series (Series, which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which failure continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 holders of Investor Certificates of any Series evidencing Undivided Interests in the Trust Assets aggregating not less more than 50% of the Certificateholders Ownership Interests Invested Amount of any Series materially adversely affected thereby; or the Servicer shall assign its duties under this Agreement, except as permitted by Sections 8.2, 8.5 and 8.7;
(c) any representation, warranty or certification made by the Servicer in this Agreement, 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 holder of the Transferor Certificate or the Investor Certificates of any Series and which 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 Trustee, or by the holders of Investor Certificates of any Series evidencing Undivided Interests in the Trust Assets aggregating not less than 51% of the Invested Amount of any Series materially adversely affected thereby; or
(d) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall voluntarily seek, consent to or acquiesce in the appointment benefit or benefits of the Bankruptcy Code or, voluntarily or involuntarily, become a conservator party to (or receiver be made the subject of) any proceeding provided for under the Bankruptcy Code, other than as creditor or liquidator claimant, and in any insolvencythe event such proceeding is involuntary, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all petition instituting same is not dismissed within 90 days of its propertyfiling; or then, in the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage event of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoing; thenServicer Default, so long as such the Servicer Default shall not have been remedied, either the TrusteeTrustee may, or and at the Holders direction of the holders of Investor Certificates evidencing Undivided Interests aggregating more than 5051% of the Aggregate Certificateholders Ownership InterestsInvested Amount of any Series materially and adversely affected thereby, shall by notice then given in writing to the Servicer and the Transferor (with a copy thereof to each Rating Agency and to the Trustee if given by a Person other than the Investor Certificateholders) Trustee (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or Receivables and the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Seriesproceeds thereof. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement and each Supplement shall pass to and be vested in the a Successor ServicerServicer (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, which grant of authority is irrevocable and coupled with an interest, 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 transfer of servicing rights and obligationsService Transfer. The Servicer agrees to cooperate with the Trustee Trustee, the Transferor and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, 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, 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 Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustServicer. The Servicer shall at its expense promptly transfer transfer, to the extent it is permitted by applicable law to do so, its electronic records or electronic copies thereof relating to the Trust Assets Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer transfer, to the extent it is permitted by applicable law to do so, to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Trust Assets Receivables in the manner and at such times as the Successor Servicer shall reasonably requestrequest and shall, to the extent not prohibited by licensing restrictions, provide access to or copies of computer software, including by means of sublicensing arrangements if applicable, to the extent necessary for the continued servicing of the Receivables; provided, however, that the Servicer shall not be required, to the extent it has an ownership interest in any electronic records, computer software or licenses, to transfer, assign, set-over or otherwise convey such ownership interest(s) to the Successor Servicer. The Servicer at its expense shall provide the Successor Servicer with access to any computer hardware in its possession for a reasonable time after the Servicer's termination to the extent necessary for the uninterrupted servicing of the Receivables. Notwithstanding the foregoing, the Servicer shall not be required to provide such access, whether with respect to computer hardware or software, if to provide such access would violate applicable contractual restrictions (including pursuant to any licensing arrangements to which Stone Container is a party); provided, however, that Stone Container shall use its reasonable best efforts in seeking consents or waivers necessary to permit the Successor Servicer to have such access. To the extent that compliance with this Section 10.01 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 reasonably necessary to protect its interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor 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.be
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Stone Container Corp)
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 (other than with respect to any Credit Balances) or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Indenture Trustee to make any required drawingsuch payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing 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 (other than those set forth in subsections 3.03(g), (i) that has an Adverse Effect and (j)), which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 Undivided Interests aggregating not less than 5010% of the Certificateholders Ownership Interests aggregate unpaid principal amount of all 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 adversely affected thereby and continues to materially adversely affect which such Investor Certificateholders for such periodfailure relates); or the Servicer shall delegate delegates or assign assigns its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(gSections 3.01(a), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 5.02 and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure6.02;
(ciii) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer Report) 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 Investor Certificateholders rights of the Noteholders of any Series (which determination shall will be made without regard to the availability of whether funds are then available pursuant to any Credit Enhancement or similar credit support deviceSeries Enhancement) and which such Adverse Effect continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failurethereof, 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 Undivided Interests aggregating not less than 5010% of the Certificateholders Ownership Interests aggregate unpaid principal amount of all 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 adversely affected therebyto which such representation, warranty or certification relates); or
(div) the Servicer 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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 for 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an makes any assignment for the benefit of its creditors or voluntarily suspend suspends payment of its obligations or take any corporate action obligations; then, in furtherance the event of any of the foregoing; thenServicer Default, so long as such the Servicer Default shall has not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating more than 50% of the Aggregate Certificateholders Ownership Interestsaggregate unpaid principal amount of all Notes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "“Termination Notice"”), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement Agreement; 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 6.02(c) to act as a Successor Servicer and in and receives an Officer’s Certificate of the Servicer to the Receivables. Any determination effect that an inaccuracy or other event, the Servicer cannot in good faith cure the Servicer Default which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard gave rise to the availability Termination Notice, the Indenture Trustee will grant a right of any Credit Enhancement or similar credit support device first refusal to the Transferor permitting the Transferor at its option to acquire the Noteholders’ Collateral serviced by the Servicer on the Distribution Date in the next calendar month. The price for the Noteholders’ Collateral will be equal to the sum of the Reassignment Amounts with respect to each outstanding Series in the related Indenture Supplement. The Transferor will notify the Indenture Trustee prior to the Record Date (as defined in the Indenture) for the Distribution Date of the acquisition if it is exercising such Seriesright of first refusal. If the Transferor exercises such right of first refusal, the Transferor will deposit the price into the Collection Account no later than 1:00 p.m., New York City time, on such Distribution Date in immediately available funds. The price will be allocated and distributed to the Noteholders on such Distribution Date in accordance with the Indenture and each Indenture Supplement in payment of their Notes and will result in a corresponding increase in the Transferor Interest.
(b) After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been 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 ServicerServicer (a “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 transfer of servicing rights and obligationsServicing 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 includinghereunder, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, including, without limitation, 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, the Finance Charge Account, the Principal Account, and any Series Account, or which shall that thereafter be are received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustServicer. The Servicer shall promptly will within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets Receivables in the manner and at such times as the Successor Servicer shall reasonably requestrequests. To the extent that compliance with this Section 10.01 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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. .
(c) Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(aclause (i) of Section 6.01(a) for a period of 10 ten Business Days after the applicable grace period or under subsection 10.01(bclause (ii) or (ciii) of Section 6.01(a) for a period of 60 Business DaysDays 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, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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, any Credit Enhancement Providerthe Owner Trustee, the Transferor and the Holders of Investor Certificates any Series Enhancer 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: Transfer and Servicing Agreement (Ford Credit Floorplan 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 (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement on or before the date occurring five Enhancement, in each case, within one Business Days Day after the date of the receipt by the Servicer of written notice from the Trustee or any Purchaser Representative that such payment, transfer, deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement, any Supplement or any Receivables Purchase Agreement;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j)), which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 any Supplement or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this 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 the availability of any Credit Enhancement or similar credit support device) Receivables, and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues to be incorrect in any material respect 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 the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 5025% of the Certificateholders Ownership Interests Investor Interest of any Series adversely affected therebyCertificate Series, or an Enhancement Provider and such material adverse effect continues for such period; oror the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement or any Receivables Purchase Agreement or in any certificate delivered pursuant to this Agreement, any Supplement or any Receivables Purchase Agreement shall prove to have been incorrect when made, which has a material adverse effect on (i) the
(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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoingobligations; then, so long as 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 Certificateholders Ownership InterestsInvestor/Purchaser Interest, by notice then given in writing to the Servicer Servicer, and each Purchaser Representative (and to the Trustee if given by the Investor CertificateholdersCertificateholders or the Purchaser Representatives) (a "Servicer Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the ReceivablesAgreement. Any determination that an inaccuracy or other event, which with notice and/or the passage The Trustee shall promptly notify any Enhancement Provider of time would constitute a any such Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer of such Servicer Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(a) 10.1(a), for a cumulative period of 10 ten Business Days Days, or under subsection 10.01(b10.1(b) or (c) ), for a cumulative period of 60 sixty Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor Seller, and the Holders of Investor Certificates each Purchaser Representative 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 (Charming Shoppes 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 (other than with respect to any Credit Balances) or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Indenture Trustee to make any required drawingsuch payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this AgreementAgreement 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 (other than those set forth in subsections 3.03(g), (i) and (j)), which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) an Adverse Effect and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by Holders of Notes evidencing not less than 10% of the aggregate unpaid principal amount of all 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 or delegate its duties under this Agreement, except as permitted by Sections 5.02 and 5.07;
(c) any representation, warranty or certification 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 an Adverse Effect on the rights of the Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which 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 Owner Trustee or the Indenture Trustee, or to the Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 5010% of the Certificateholders Ownership Interests aggregate unpaid principal amount of all 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 adversely affected therebyto which such representation, warranty or certification relates); or
(d) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law for Servicer shall consent to the appointment of a conservator bankruptcy trustee, conservator, receiver, liquidator or receiver or liquidator similar official in any bankruptcy proceeding or 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 and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or 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, voluntary liquidation 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, conservator, receiver, liquidator or similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its propertyaffairs, shall have been entered against the Servicer; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action obligations; Then, in furtherance the event of any of the foregoing; thenServicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating more than 50% of the Aggregate Certificateholders Ownership Interestsaggregate unpaid principal amount of all Notes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "Termination ----------- Notice"), may terminate all of but not less than all the rights and obligations of ------ the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement Agreement; 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 subsection 7.02(c) to act as a Successor Servicer and in and receives an Officer's Certificate of the Servicer to the Receivableseffect 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 Transferor which would permit the Transferor at its option to acquire the Notes on the Distribution Date in the next calendar month. Any determination that an inaccuracy or other event, which with notice and/or The price for the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates Notes shall be made without regard equal to the availability sum of any Credit Enhancement or similar credit support device the amounts specified therefor with respect to each outstanding Series in the related Indenture Supplement. The Transferor shall notify the Indenture Trustee prior to the Record Date for the Distribution Date of the acquisition if it is exercising such Seriesright of first refusal. If the Transferor exercises such right of first refusal, the Transferor shall deposit the price into the Collection Account not later than 1:00 p.m., New York City time, on such Distribution Date in immediately available funds. The price shall be allocated and distributed to Noteholders in accordance with the terms of the Indenture and each Indenture Supplement. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been is 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 ServicerServicer (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 transfer of servicing rights and obligationsService 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 includinghereunder, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, including, without limitation, 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 Principal Account, and any Series Account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustServicer. The Servicer shall promptly within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 interests. Subject The Servicer shall pay to the immediately preceding sentence, the Servicer agrees to grant to the Indenture Trustee and any Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned reasonable transition expenses incurred by such person and the Servicer and which is used by the Servicer agents in connection with the servicing any transition of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 ServicerServicing. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(aparagraph (a) above for a period of 10 Business Days after the applicable grace period or under subsection 10.01(bparagraph (b) or (c) above for a period of 60 Business DaysDays 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, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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, any Credit Enhancement ProviderOwner Trustee, the each Transferor and the Holders of Investor Certificates any Series Enhancer 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: Transfer and Servicing Agreement (Household Credit Card Master Note Trust I)
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 deposit or deposit (other than with respect to any Credit Balances) or to give instructions or notice credit to the Trustee pursuant to Article IV or to instruct the Trustee to make Collection Account any amount required drawing, withdrawal, or payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or drawing or such instruction or notice is required this Agreement to be made so deposited or given, as the case may be, under the terms of this Agreement;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j))credited, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which failure continues unremedied for a period of 60 days two Business Days after discovery by the date on which Servicer or receipt by the Servicer of written notice of such failurefailure from the Issuer, stating that the Indenture Trustee or the Insurer or after discovery of such notice is a "Notice of Servicer Default" hereunder and requiring the same to be remedied, shall have been given to the Servicer failure by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% an officer of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; Servicer;
(b) the Insurer, the Indenture Trustee or the Servicer Issuer shall delegate or assign its duties under this Agreement, except as permitted by not have received a report in accordance with Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal 3.08 by the Servicer of the related Receivable in accordance Report Date with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following respect to which such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) report is due and which continues to be incorrect in any material respect shall continue unremedied for a period of 60 days one day after the date on which written notice of such failure, requiring the same to be remedied, shall have been given given;
(c) failure on the part of the Seller or the Servicer duly to observe or to perform any other covenants or agreements of the Seller or the Servicer set forth in this Agreement or any other Basic Document, which failure shall (i) materially and adversely affect the rights of the Noteholders, the Insurer, the Issuer, the Owner Trustee or the Indenture Trustee and (ii) continue unremedied for a period of 30 days after the date on which the Seller, the Custodian or the Servicer shall have knowledge of such failure or written notice of such failure, requiring the same to be remedied, shall have been given
(A) to the Servicer Seller or the Servicer, as the case may be, by the TrusteeInsurer, the Issuer, the Owner Trustee or the Indenture Trustee or (B) to the Servicer Seller or the Servicer, as the case may be, and to the Issuer and the Indenture Trustee by Noteholders, acting together as a single class, evidencing in the Holders of Investor Certificates evidencing Undivided Interests aggregating aggregate not less than 5025% of the Certificateholders Ownership Interests Outstanding Principal Amount of any Series adversely affected thereby; the Notes or, so long as no Insurer Default has occurred and is continuing, by the Insurer;
(d) the entry of a decree or order of for relief by a court or agency or supervisory regulatory authority having jurisdiction in respect of the premises Servicer or the Seller in an involuntary case under the federal bankruptcy laws, as now or hereafter in effect, or another present or future, federal or state, bankruptcy, insolvency or similar law, or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Servicer or the Seller or of any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Servicer or the Seller and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the commencement of an involuntary case under the federal bankruptcy laws, as now or hereinafter in effect, or another present or future federal or state bankruptcy, insolvency or other similar law for and such case is not dismissed within 60 days;
(e) the appointment commencement by the Servicer or the Seller of a conservator voluntary case under the federal bankruptcy laws, as now or receiver hereafter in effect, or liquidator in any insolvencyother present or future, readjustment of debtfederal or state, marshalling of assets and liabilities bankruptcy, insolvency or similar proceedingslaw, or for the winding-up or liquidation of its affairs, shall have been entered against consent by 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 consent Seller to the appointment of or taking possession by a conservator receiver, liquidator, assignee, trustee, custodian, sequestrator or receiver or liquidator in any insolvency, readjustment other similar official of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or the Seller or of or relating to all or substantially all any substantial part of its property; property or the making by the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage or the Seller of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment the failure by the Servicer or the Seller generally to pay its debts as such debts become due or the taking of its obligations or take any corporate action by the Servicer or the Seller in furtherance of any of the foregoing;
(f) any merger or consolidation or sale of assets of the Servicer in violation of the covenant set forth in Section 6.02 hereof;
(g) the Servicer shall have failed in the reasonable opinion of the Insurer to service the Contracts in accordance with the Servicing Standards and such failure shall have continued unremedied for 30 days after written notice of such failure shall have been delivered to the Servicer by the Insurer;
(h) any representation, warranty or statement of the Servicer or the Seller made in this Agreement or the other Basic Documents or any certificate, report or other writing delivered pursuant hereto or thereto shall prove to be incorrect in any material respect as of the time when the same shall have been made (excluding, however, any representation or warranty made in this Agreement or any other Basic Document as to which Section 2.03 or 3.06 shall be applicable so long as the Servicer or the Seller shall be in compliance with Section 2.03 or 3.06, as the case may be), and the incorrectness of such representation, warranty or statement has a material adverse effect on the Noteholders or the Insurer and, within 30 days after written notice thereof shall have been given to the Servicer or the Seller by the Indenture Trustee or the Issuer or by Noteholders, acting together as a single Class, evidencing in the aggregate not less than 25% of the Outstanding Principal Amount of the Notes, or so long as no Insurer Default has occurred, by the Insurer, the circumstance or condition in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured;
(i) the subservicing agreement between World Omni Financial Corp. and the Servicer shall for any reason cease to be in full force and a successor Subservicer acceptable to the Insurer shall not be appointed within 60 days, or if any party thereto denies that it has any further liability thereunder or gives notice to such effect;
(j) the Indenture Trustee shall, for any reason, fail to have a valid perfected first priority security interest in Contracts pledged by the Issuer to the Indenture Trustee the outstanding aggregate Principal Balance of which exceeds 5.00% of the Pool Balance;
(k) unless authorized under Section 5.02, the Seller shall enter into any transaction described in Section 5.02 regardless of the surviving entity; thenor
(l) an Event of Default as defined in the Insurance Agreement; then and in each and every case, so long as such Servicer Default shall not have been remedied, either (i) if no Insurer Default has occurred and is continuing, the TrusteeInsurer or (ii) if an Insurer Default has occurred and is continuing, or the Holders Indenture Trustee acting at the direction of Investor Certificates the Noteholders evidencing Undivided Interests aggregating more not less than 5025% of the Aggregate Certificateholders Ownership Interestsoutstanding amount of the Notes, acting together as a single Class, by notice then given in writing to the Servicer (and to the Insurer, the Indenture Trustee and the Issuer if given by the Investor CertificateholdersNoteholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer under this Agreement. Upon such termination, termination of the Servicer as custodian, if the Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other eventsuch, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall can be made without regard pursuant to Section 2.08. On or after the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.02written notice of termination, all authority and power of the Servicer under this Agreement shall Agreement, whether with respect to the Notes, the Contracts or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer; Servicer as may be appointed under Section 7.02 and, without limitation, the Indenture Trustee is and the Issuer are hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, deliver on behalf of the 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 notice of termination, whether to complete the transfer and endorsement of servicing rights the Contracts and obligationsrelated documents, or otherwise. The Servicer agrees to shall cooperate with the Trustee Indenture Trustee, the Insurer and such Successor Servicer the Issuer in effecting the termination transfer of the responsibilities and rights of the Servicer under this Agreement (whether due to conduct servicing hereunder includingtermination, without limitationresignation or otherwise), including the transfer to the Indenture Trustee or such Successor Servicer Servicer, as applicable, for administration by it of all authority of cash amounts that (i) shall at the Servicer to service the Trust Assets provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer time be held by the Servicer for depositdeposit in, or which shall have been deposited by the ServicerServicer in, in the Collection Account, the Finance Charge Account, the Principal Account, and any Series Account, Account or which (ii) shall thereafter be received with respect to the Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under the Credit Enhancement it with respect to any Series Contract. The predecessor Servicer shall pay all costs of the Successor Servicer associated with its transition to the role of Successor Servicer. Notwithstanding the foregoingServicer (whether due to termination, a delay in resignation or failure of performance referred to in subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor 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 obligationsotherwise).
Appears in 1 contract
Sources: Sale and Servicing Agreement (Auto Nations 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 (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j))Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and requiring the same to be remedied, shall have been given to the Servicer by the Trustee, provided that the Trustee has actual knowledge of such failure, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests Invested Amount of any Series materially adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure8.7;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 TrusteeTrustee provided that the Trustee has actual knowledge of such failure, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests Invested Amount of any Series materially adversely affected therebythereby and continues to materially adversely affect such Investor Certificateholders for such period; or
(d) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoing; then, so long as 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 Certificateholders Ownership Interests, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor 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
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 (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV the terms of this Agreement or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement Supplement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this AgreementAgreement 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 (other than those set forth in subsections 3.03(g), (i) and (j)), 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 the availability of any Credit Enhancement or similar credit support device) Class and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 more than 50% of the Certificateholders Ownership Interests Aggregate Investor Amount (or, with respect to any such failure that does not relate to all Series, 50% of any the aggregate Investor Amount of all Series adversely affected thereby and continues to materially adversely affect which such Investor Certificateholders for such periodfailure relates); or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 8.02, 8.07 or 8.07; provided13.08, however, that failure on the part a Responsible Officer of the Servicer duly to observe or perform in any respect any covenants or agreements Trustee has actual knowledge of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) such delegation and which such delegation continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 unremedied for 15 days after the date (following such removal) on which written notice of such continuing material adverse effect thereof, requiring the same to 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 Undivided Interests aggregating not less more than 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failureAggregate Investor Amount;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) Class 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 less more than 50% of the Certificateholders Ownership Interests Aggregate Investor Amount (or, with respect to any such representation, warranty or certification that does not relate to all Series, 50% of any the aggregate Investor Amount of all Series adversely affected therebyto 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, 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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or 84 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action obligations; then, in furtherance the event of any of the foregoing; thenServicer Default, so long as such the 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 Certificateholders Ownership InterestsInvestor Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement Agreement; 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 subsection 10.02(c) to act as a Successor Servicer and in and receives an Officer's Certificate of the Servicer to the Receivableseffect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall offer the Transferors the right at their option to purchase the Certificateholders' Interest on the Distribution Date next succeeding 60 days after the receipt by the Servicer of a Termination Notice. Any determination that an inaccuracy or other event, which with notice and/or The purchase price for the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates Certificateholders' Interest shall be made without regard equal to the availability sum of any Credit Enhancement or similar credit support device the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Transferors shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such Seriesoption. If any of the Transferors exercise such option, such Transferors shall (x) if short-term deposits or long-term unsecured debt obligations of the parent of such Transferors 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 ▇▇ ▇▇▇▇pendent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Transferors have received reasonably equivalent value and as to the solvency of such Transferors, the purchase would not be considered a fraudulent 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 such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer of servicing rights and obligationsrights. 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 Trust Assets Receivables provided for under this Agreement, 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 Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustInsurance Proceeds. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 any delay in or failure of performance referred to in under subsection 10.01(a) for a period of 10 5 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Daysdays (in addition to any period provided in subsection 10.01(a), (b) or (c)) 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, terrorism, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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, any Credit Enhancement Providereach Rating Agency, the Transferor and the Holders of the Transferor Certificates and the Investor Certificates Certificateholders 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 to so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Fleet Credit Card Master Trust Ii)
Servicer Defaults. If any one of the following events (a ----------------- "Servicer Default") shall occur and be continuing:continuing with respect to the Servicer: ----------------
(a) any failure by the Servicer to make any payment, transfer or deposit (other than with respect to any Credit Balances) or to give instructions or to give notice to the Trustee pursuant to Article IV make such payment, transfer or deposit or to instruct give notice to the Trustee as to make any required drawing, withdrawal, or payment action to be taken under any Credit Enhancement Agreement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this 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 respect any other covenants or agreements of the Servicer set forth in this Agreement (other than with respect to those set forth specified in subsections 3.03(gclause (b) above and with respect to clauses (viii), (iix) and (j))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 the availability of any Credit Enhancement or similar credit support device) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), thirty (i30) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 less than 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby; or;
(d) any representation, warranty or certification 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 rights of the Investor Certificateholders of any Series 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 the Servicer shall have repurchased the related Receivables or, if applicable, all of such Receivables during such period in accordance with the provisions of this Agreement;
(e) 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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action obligations; then, in furtherance the event of any of the foregoing; thenServicer Default, so long as such 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 Certificateholders Ownership Interests, by notice then given in writing to the Servicer (and to the Trustee 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 (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or Receivables and the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Seriesproceeds thereof. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer 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; 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 transfer of servicing rights and obligationsService 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 includinghereunder, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, including, without limitation, 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 Principal Account, and any Series Account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustServicer. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 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 reasonably necessary to protect its interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 Servicerinterest. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(aunder Section 10.1(a) for a period of 10 Business Days or under subsection 10.01(bSection 10.1(b), (c) or (cd) for a period of 60 Business Days, 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, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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, any Credit Agents, any Enhancement ProviderProviders, the Transferor Seller and the Holders of Investor Certificates Certificateholders with an Officer's Officers' 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 1 contract
Sources: Pooling and Servicing Agreement (Deutsche Floorplan Receivables L P)
Servicer Defaults. If any one Any of the following events (shall constitute a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer in its capacity as Servicer to make any payment, transfer or deposit (other than with respect required by any Transaction Document to any Credit Balances) be made by it 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 Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, transfer or deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement;which failure continues unremedied for three Business Days,
(b) except as set forth in the other paragraphs of this SECTION 10.1, failure on the part of the Servicer in its capacity as 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 other than those set forth in subsections 3.03(g), (i) and (j))Transaction Document, which failure has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) Holders and which continues unremedied for a period of 60 30 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 any Noteholder or, subject to the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% prior written approval of the Certificateholders Ownership Interests of any Series adversely affected thereby; orRequired Holders, Issuer,
(c) Servicer shall assign its duties under this Agreement, except as permitted by SECTIONS 3.1(b) and 8.3,
(d) any Daily Report or Monthly Report shall fail to have been correct in any material respect when made or delivered, or shall not have been delivered when required under the terms hereof, and in either case such condition continues unremedied for a decree period of three Business Days; or order of a court any other representation, warranty or agency certification made by Servicer in any Transaction Document or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency certificate or other similar law for the appointment of a conservator document or receiver or liquidator instrument delivered pursuant to any Transaction Document shall fail to have been correct in any insolvencymaterial respect when made or delivered, readjustment which failure has a materially adverse effect on the Noteholders and which materially adverse effect continues unremedied for a period of debt15 Business Days after the date on which written notice of failure, marshalling of assets and liabilities or similar proceedings, or for requiring the winding-up or liquidation of its affairssame to be remedied, shall have been entered against the given to Servicer by Trustee or to Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall consent Trustee by any Noteholder or, subject to the appointment prior written approval of a conservator or receiver or liquidator in the Required Holders, Issuer, or
(e) any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating Bankruptcy Event shall occur with respect to Servicer. In the Servicer or of or relating to all or substantially all of its property; or the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage event of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoing; thenServicer Default, so long as such Servicer Default shall not have been remedied, either Issuer shall, at the Trustee, direction of Trustee or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Aggregate Certificateholders Ownership InterestsRequired Holders, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination NoticeTERMINATION NOTICE"), may terminate all (but not less than all) of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables, the Related Pledged Assets and the proceeds thereof. Any determination that As soon as possible, and in any event within five Business Days, after an inaccuracy or other event, which with notice and/or Authorized Officer of Servicer has obtained knowledge of the passage occurrence of time would constitute a any Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates Servicer shall be made without regard to furnish Issuer, Trustee and the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer Rating Agencies, and Trustee shall promptly furnish each Noteholder, notice of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 ServicerDefault. Notwithstanding the foregoing, a delay in or failure of in performance referred to in subsection 10.01(aSUBSECTION (a) for a period of 10 ten Business Days after the applicable grace period, or under subsection 10.01(bin SUBSECTION (b) or (cd) for a period of 60 30 Business DaysDays after the applicable grace period, shall not constitute a Servicer Default if such the delay or failure could not be have been prevented by the exercise of reasonable diligence by the Servicer and such the delay or failure was caused by an act of God or the public enemy, riots, acts of declared or undeclared war, public disorder, rebellion, riot or sabotageacts of terrorism, epidemics, flood, embargoes, weather, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages earthquakes 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 the Transaction Documents, and the Servicer shall provide the Trustee, any Credit Enhancement Provider, the Transferor promptly give Issuer and the Holders of Investor Certificates with Trustee an Officer's Certificate giving prompt notice notifying them of such its failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligationsdelay.
Appears in 1 contract
Servicer Defaults. If any one of the following events (herein called a ----------------- "Servicer Default") shall occur have occurred and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j)), which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 less than 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby; or
(d) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoing; then, so long as such Servicer Default shall not have been remedied, either the Trustee, ---------------- on behalf of the Noteholders or the Holders of Investor Certificates evidencing Undivided Interests aggregating Noteholders having more than 50% of the Aggregate Certificateholders Ownership Interestsaggregate Noteholders' interests of all outstanding Notes upon written notice, by notice then given in writing shall have the right to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and to appoint a new Servicer (the "Successor Servicer") as provided in and to Section 11.2 of the ReceivablesBase Indenture. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer of such Termination Notice, and on the date that a A ------------------ ------------ Successor Servicer shall must be legally qualified and have been appointed by the Trustee pursuant corporate power and authority to Section 10.02, all authority service the Receivables and power must have demonstrated the ability to service a portfolio of the Servicer under this Agreement shall pass to similar receivables in accordance with applicable industry standards of skill and be vested in the Successor 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 transfer of servicing rights and obligationscare. The Servicer agrees to cooperate with the Trustee and such any Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, 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 Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustServicer. The Servicer shall promptly transfer all of its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets Receivables in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall deliver, or cause to be delivered, to the Successor Servicer licenses, or the Successor Servicer shall otherwise be satisfied with its ability, to use any computer programs, material tapes, disks, cassettes and data necessary to permit the collection of the Receivables by the Successor Servicer without the participation of TWA. To the extent that compliance with this Section 10.01 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 and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestsinterest. Subject to Upon the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing event of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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 enemyDefault, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 to the TrusteeTrustee access to its facilities, any Credit Enhancement Providersystems, the Transferor equipment and the Holders of Investor 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 obligationsleasehold agreements.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Trans World Airlines Inc /New/)
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 (other than with respect to any Credit Balances) or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawingsuch payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five Business Days days after the date such payment, transfer, deposit, withdrawal transfer or drawing deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this AgreementAgreement or any Supplement;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j)), or any Supplement which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which failure continues unremedied for a period of 60 30 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (ix) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 any Control Party or (y) the Trusteedate on which the Servicer has actual knowledge of such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made in any material respect which inaccuracy continues unremedied for a period of 30 days after (x) the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer and by any Control Party or (y) the Trustee by date on which the Holders Servicer has actual knowledge of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests of any Series adversely affected therebysuch failure; or
(d) a decree the Servicer shall voluntarily seek, consent to or order of a court or agency or supervisory authority having jurisdiction acquiesce in the premises in an involuntary case benefit or benefits of any Debtor Relief Law or becomes a party to (or be made the subject of) any proceeding provided for under any present Debtor Relief Law, other than as creditor or future federal or state bankruptcyclaimant, insolvency or other similar law for 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 for the winding-up or liquidation petition instituting same is not dismissed within 60 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 daysfiling; or the Servicer shall consent to assign its duties under this Agreement, except as permitted by this Agreement; then, in the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage event of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoing; thenServicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, or the Requisite Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Aggregate Certificateholders Ownership Interests, by notice then given in writing to the Servicer and the Transferor (with a copy thereof to each Rating Agency) and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the ------------------ rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or Receivables and the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Seriesproceeds thereof. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor 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 (Compucom Systems 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 (other than with respect to any Credit Balances) or to give notice or instructions or notice to the Trustee pursuant to Article IV or to instruct the Indenture Trustee to make any required drawingwithdrawal or payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or drawing 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, 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 (other than those set forth in subsections 3.03(g), (i) and (j)), 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 the availability of any Credit Enhancement Series, Class or similar credit support device) Tranche and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer Servicer, the Owner Trustee, the Indenture Trustee and the Trustee applicable Collateral Agent by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests aggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06;
(c) any representation, warranty or certification 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 an Adverse Effect on the rights of the Noteholders of any Series adversely affected thereby; Series, Class or Tranche and which 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 applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take obligations; or
(e) any corporate action other Servicer Default described in furtherance of any of the foregoingIndenture Supplement; then, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating more than 50% of the Aggregate Certificateholders Ownership Interestsaggregate unpaid principal amount of all affected Notes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "“Termination Notice"”), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement Agreement; 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 subsection 10.02(a) to act as a Successor Servicer and in and receives an Officer’s Certificate of the Servicer to the Receivables. Any determination effect that an inaccuracy or other event, the Servicer cannot in good faith cure the Servicer Default which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard gave rise to the availability Termination Notice, the Indenture Trustee shall assume the role of any Credit Enhancement or similar credit support device with respect to such SeriesSuccessor Servicer. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been 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; 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 transfer of servicing rights and obligationsService 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 includinghereunder, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Collateral provided for under this Agreement, including, without limitation, 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, Account for the Finance Charge Account, the Principal Account, and any Series Accountapplicable Asset Pool, or which shall thereafter be received with respect to the Trust AssetsCollateral, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall promptly within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets Collateral 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(aparagraph (a) above for a period of 10 Business Days after the applicable grace period or under subsection 10.01(bparagraph (b) or (c) above for a period of 60 Business DaysDays 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, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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, any Credit Enhancement Providerthe Owner Trustee, the applicable Collateral Agent and each Transferor and the Holders of Investor 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: Transfer 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 (other than with respect to any Credit Balances) or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawingsuch payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this AgreementAgreement 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 (other than those set forth in subsections 3.03(g), (i) and (j)), or any Supplement which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of whether funds are then available pursuant to any Credit Enhancement or similar credit support deviceSeries Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 5010% of the Certificateholders Ownership Interests 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 adversely affected thereby and continues to materially adversely affect which such Investor Certificateholders for such periodfailure relates); or the Servicer shall assign or delegate or assign its duties under this Agreement, except as permitted by Section Sections 8.02 or and 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 of any Series (which determination shall be made without regard to the availability of whether funds are then available pursuant to any Credit Enhancement or similar credit support deviceSeries Enhancement) and which material adverse effect continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failurethereof, 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 5010% of the Certificateholders Ownership Interests 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 adversely affected therebyto 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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action obligations; then, in furtherance the event of any of the foregoing; thenServicer Default, so long as such 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 Certificateholders Ownership Interestsaggregate 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 of but not less than all the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the ReceivablesReceivables 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. Any determination that an inaccuracy or other event, which with notice and/or The purchase price for the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates Certificateholders’ Interest shall be made without regard equal to the availability sum of any Credit Enhancement or similar credit support device 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 Seriesright 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 such a Termination Notice, and on the date that a Successor Servicer shall have been 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 ServicerServicer (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 transfer of servicing rights and obligationsService 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 includinghereunder, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, including, without limitation, 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 Principal Account, and any Series Account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustServicer. The Servicer shall promptly within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 Servicerinterest. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(aparagraph (a) above for a period of 10 Business Days after the applicable grace period or under subsection 10.01(bparagraph (b) or (c) above for a period of 60 Business DaysDays 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 warwar (including acts of terrorism), public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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 Credit Enhancement Provider, the Transferor Series Enhancer and the Holders of Investor Certificates Certificateholders 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
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 into the Collection Account (including, without limitation, with respect to bifurcation and remittance of Collections) as required by this Agreement which continues unremedied for a period of two Business Days;
(b) any failure on the part of the Servicer duly to observe or perform in any material respect any other than 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 material delegation of the Servicer’s duties that is not permitted by Section 6.1) and the same continues unremedied for a period of 30 days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer (with a copy to the Backup Servicer) by the Administrative Agent or any Purchaser Agent or the Trustee and (ii) the date on which a Responsible Officer of the Servicer acquires knowledge thereof;
(c) the failure of the Servicer to make any payment when due (after giving effect to any related grace period) with respect to any recourse debt or other obligations, which debt or other obligations are in excess of United States $5,000,000, 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) the Servicer fails in any material respect to comply with the Credit Balancesand Collection Policy and the Servicing Standard regarding the servicing of the Collateral and the same continues unremedied for a period of 30 days (if such failure can be remedied) after the earlier to occur of (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 Administrative Agent or any Purchaser Agent or the Trustee and (ii) the date on which a Responsible Officer of the Servicer acquires knowledge thereof;
(f) as of any Determination Date, the Average Portfolio Charged-Off Ratio exceeds 3.5%;
(g) the Servicer consents or agrees to, or otherwise permits to occur, under circumstances in which the Servicer could have reasonably prevented the occurrence thereof, any material amendment, modification, change, supplement or rescission (any of the foregoing an “amendment” for purposes of this Section 6.18(g)) of or to give instructions the Credit and Collection Policy (after the adoption of same) in whole or in part that could have a Material Adverse Effect on the Collateral, the Administrative Agent, any Purchaser Agent or the other Secured Parties, without the prior written consent of the Administrative Agent and each Purchaser Agent which amendment shall remain in effect for a period of ten Business Days after notice thereof is delivered to the Trustee pursuant Administrative Agent (which notice shall be delivered within seven days after the effectiveness of such amendment) and the Administrative Agent shall not have delivered a written consent thereto during such ten Business Day period; provided, however, that such prior written consent shall not be required in the case of an amendment which was mandated by any Applicable Law or Governmental Authority;
(h) the Company or an Affiliate thereof shall cease to Article IV be the Servicer;
(i) the occurrence or existence of any change with respect to instruct the Trustee Servicer which has a Material Adverse Effect;
(j) the Company fails to make maintain the aggregate of its GAAP stockholders’ equity and subscribed stockholders’ equity in an amount equal to at least 80% of the initial committed equity, as increased by (i) 80% of the proceeds of any equity offerings of the Company consummated after the Initial Closing Date, and (ii) 50% of cumulative positive net income earned by the Company after the Initial Closing Date;
(k) any failure by the Servicer to deliver any required drawing, withdrawal, Servicing Report or payment under any Credit Enhancement other Required Reports hereunder on or before the date occurring five two Business Days after the date such payment, transfer, deposit, withdrawal or drawing or such instruction or notice report is required to be made or given, as the case may be, under the terms of this Agreement;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j)), which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(cl) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement Transaction Document or in any certificate (including without limitation any Monthly Servicer Report) 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 Investor Certificateholders of Administrative Agent, any Series (which determination shall be made without regard to Purchaser Agent or the availability of any Credit Enhancement or similar credit support device) Secured Parties and which continues to be incorrect in any material respect unremedied for a period of 60 30 days after the earlier to occur of (i) the date on which written notice of such failure, incorrectness requiring the same to be remedied, remedied shall have been given to the Servicer by the TrusteeAdministrative Agent or any Purchaser Agent or the Trustee and (ii) the date on which a Responsible Officer of the Servicer acquires knowledge thereof;
(m) [Reserved];
(n) any financial or other information reasonably requested by the Administrative Agent, any Purchaser Agent or any Purchaser is not provided as requested within a reasonable amount of time following such request;
(o) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of United States $7,500,000, individually or in the aggregate, and the 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;
(p) any change in the management of the Servicer (whether by resignation, termination, disability, death or lack of day to day management) relating to any four of ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇▇, or any failure by any four of the aforementioned Persons to provide active and material participation in the Servicer’s daily activities including, but not limited to, general management, underwriting, and the credit approval process and credit monitoring activities, which no later than 60 days after the occurrence of any event specified above is not cured by the Servicer hiring a reputable, experienced individual reasonably satisfactory to the Administrative Agent and each Purchaser Agent to replace the Person who is no longer actively participating in the management of the Servicer and the Trustee or which is not waived in writing by the Holders Administrative Agent and each Purchaser Agent; provided, however, that time relating to an individual’s vacation within the Servicer’s employee policy and customary industry standards shall not constitute lack of Investor Certificates evidencing Undivided Interests aggregating not less than 50% day to day management or failure to provide active and material participation in the Servicer’s daily activities;
(q) any change in the control of the Certificateholders Ownership Interests Servicer that takes the form of any Series adversely affected therebyeither a merger or consolidation that does not comply with the provisions of Section 5.5(b);
(r) the Subservicing Agreement with JPMorgan FCS Corp. ceases to be in effect for 90 days during such time as it is required to be in effect hereunder, and such Subservicing Agreement is not replaced with subservicing arrangements satisfactory to the Administrative Agent in its sole discretion; or
(ds) a decree or order the unpaid outstanding face amount of a court or agency or supervisory authority having jurisdiction the $100,000,000 Delayed Draw Extendible Senior Secured Notes due 2008 of the Company (the “Fortress Notes”) has been declared due and payable in full following the premises in occurrence of an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law for the appointment event 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 and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall consent default with respect to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating Fortress Notes; then notwithstanding anything herein to the Servicer or of or relating to all or substantially all of its property; or the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoing; thencontrary, so long as 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 Undivided Interests aggregating more than 50% date of the Aggregate Certificateholders Ownership InterestsServicer Termination Notice (defined below), the Administrative Agent, by written notice then given in writing to the Servicer (and with a copy to the Trustee if given by the Investor Certificateholdersand Backup Servicer) (a "“Servicer Termination Notice"”), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor 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: Sale and Servicing Agreement (NewStar Financial, Inc.)
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 Servicer or the Servicer Seller shall fail (i) to make when due any payment, transfer payment or deposit required hereunder, or (ii) to perform or observe any term, covenant or agreement hereunder (other than with respect as referred to in clause (i) of this paragraph (a)) and such failure shall remain unremedied for five (5) Business Days following the earlier to occur of (A) written notice thereof by any Credit Balances) Agent or to give instructions or notice the LC Issuer to the Trustee pursuant to Article IV Servicer or to instruct the Trustee to make any required drawingSeller, withdrawalas applicable, or payment under any Credit Enhancement on (B) the Servicer’s or before the date occurring five Business Days after the date Seller’s actual knowledge of such payment, transfer, deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement;failure.
(b) failure on the part of the Servicer duly to observe Any representation, warranty, certification or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j)), which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be statement made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and requiring the same to be remedied, shall have been given to the Servicer by the TrusteeSeller, the Servicer, the Performance Guarantor or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under an Originator in this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement other Transaction Document or in any certificate (including without limitation any Monthly Servicer Report) other document delivered pursuant to this Agreement or any Supplement hereto shall prove to have been incorrect when made, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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, when made or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby; ordeemed made.
(di) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcyThe Seller, insolvency or other similar law 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 and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of the Performance Guarantor shall generally not pay its debts as such debts become due or relating to all or substantially all of its property; or the Servicer shall admit in writing its inability to pay its debts as they become due, file generally or shall make a petition to take advantage of any applicable insolvency or reorganization statute, make an general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Seller, the Servicer or the Performance Guarantor 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 obligations property, or (ii) the Seller, the Servicer or the Performance Guarantor shall take any corporate action in furtherance of to authorize any of the foregoingactions set forth in clause (i) above in this subsection (c).
(d) As at the end of any Calculation Period:
(i) the average of the Delinquency Ratios for each of the three consecutive Calculation Periods then most recently ended shall exceed 2.50%; thenTHIRD AMENDED AND RESTATED RPA
(ii) the average of the Dilution Ratios for each of the three consecutive Calculation Periods then most recently ended shall exceed 9.50%; or
(iii) the average of the Default Ratios for each of the three consecutive Calculation Periods then most recently ended shall exceed 2.25%.
(1) Any Originator or the Performance Guarantor shall fail to perform or observe any term, so long as such Servicer Default shall not have been remedied, either the Trusteecovenant or agreement contained in any Transaction Document, or (ii) any Originator shall for any reason cease to transfer, or cease to have the Holders legal capacity or otherwise be incapable of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Aggregate Certificateholders Ownership Intereststransferring, by notice then given in writing Receivables to the Servicer Seller, as purchaser under the Sale Agreement, or any “Event of Default” or “Potential Event of Default” shall occur under the Sale Agreement.
(f) The Effective Receivable Interest hereunder shall at any time exceed 100%.
(g) A Change of Control shall occur.
(h) A “Default” or an “Event of Default” under and to as defined in the Trustee if given by the Investor Certificateholders) (a "Termination Notice")YRCW Credit Agreement, may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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 occur and be vested in the Successor 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivablescontinuing; provided, however, that such software any Servicer Default arising under this Section 7.1(h) shall be used by deemed automatically waived if and to the Successor Servicer solely for the purposes extent that any “Default” or “Event of servicing the Trust Assets. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations Default” under the YRCW Credit Enhancement with respect to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Agreement is waived in accordance with the terms thereof.
(i) Any Trigger Event shall occur.
(j) The Performance Undertaking shall cease to be effective or to be the legally valid, binding and enforceable obligation of this Agreement Performance Guarantor, or Performance Guarantor shall contest in any proceeding in any court or any mediation or arbitral proceeding such effectiveness, validity, binding nature or enforceability of its obligations thereunder.
(k) One or more final judgments shall be entered against Performance Guarantor or any of its Subsidiaries for the payment of money in the aggregate amount of $15,000,000 or more, or the equivalent thereof in another currency, on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and the Servicer such judgment shall provide the Trustee, any Credit Enhancement Provider, the Transferor continue unsatisfied and the Holders in effect for thirty (30) consecutive days without a stay of Investor Certificates with an Officer's Certificate giving prompt notice of such failure execution or delay by it, together with a description of the cause of such failure or delay and its efforts so bond to perform its obligationssecure appeal.
Appears in 1 contract
Servicer Defaults. If any one (a) Definition. Any of the following events (will constitute a "Servicer Default") shall occur and be continuing" pursuant to this Agreement:
(ai) any failure by the Servicer to make any paymentpay- ment, transfer or deposit (other than with respect to or deliver any Credit Balances) Monthly Statement or to give instructions or notice to Annual Statement which continues beyond the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement on or before the date occurring five second Business Days Day after the date upon which such payment, transfer, deposit, withdrawal or drawing or such instruction or notice delivery is required to be made or given, as the case may be, under the terms of pursuant to this Agreement;
(bii) 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 pursuant to this Agreement (other than those set forth in subsections 3.03(g)Agreement, (i) if such failure materially and (j)), which has a material adverse effect on adversely affects the Investor Certificateholders rights of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) Noteholders and which continues unremedied for a period of 60 thirty days after the earlier of (a) the date on which written notice of such failure, stating demand that such notice failure be remedied is a "Notice of Servicer Default" hereunder and 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 of Investor Certificates evidencing Undivided Interests aggregating not less Notes evidencing, in the aggregate, more than 50% of the Certificateholders Ownership Interests sum of any Series adversely affected thereby the then Outstanding Class A Principal Balance and continues to materially adversely affect such Investor Certificateholders for such period; the then Outstanding Class B Principal Balance) or (b) the date on which a Responsible Officer of the Servicer shall delegate or assign its becomes aware of such failure;
(iii) any delegation of the Servicer's duties under pursuant to this Agreement, except as permitted by pursuant to Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure9.6;
(civ) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer Report) delivered pursuant to this Agreement or any Supplement shall prove proves to have been incorrect in any material respect when made, which made and such incorrect statement has a material and adverse effect on the Investor Certificateholders rights of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) Holders and which continues to be incorrect in any material respect for a period of 60 thirty days after the earlier of (a) the date on which written notice of demand that such failure, requiring the same to incorrect statement be remedied, shall have been remedied is given to the Servicer by the Indenture Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less Notes evidencing, in the aggregate, more than 50% of the Certificateholders Ownership Interests sum of any Series adversely affected therebythe then Outstanding Class A Principal Balance and the then Outstanding Class B Principal Balance or (b) the date on which a Responsible Officer of the Servicer becomes aware of such incorrect statement; or
(dA) the Servicer consents to the appointment of a conservator or receiver or liquidator in any insol- vency, readjustment of debt, marshalling of assets and liabilities or similar proceeding of or relating to the Servicer or all or substantially all of its Property, (B) a decree or order of a court or agency or supervisory authority having proper jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedingsproceeding, or for the winding-up or liquidation of its the Servicer's 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 (C) 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or the Servicer shall admit admits in writing its inability to pay pay, or fails to pay, its debts generally as they become due, file files a petition or commences any case or proceeding to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make an makes any assignment for the benefit of its creditors or voluntarily suspend suspends payment of its obligations or take any corporate action in furtherance of any of the foregoing; then, so long as 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 Certificateholders Ownership Interests, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor 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 (Trans Leasing International 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 (other than with respect to any Credit Balances) or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Indenture Trustee to make any required drawingsuch payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five (5) Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing 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;
(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 (other than those set forth in subsections 3.03(g), (i) and (j)), which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) an Adverse Effect and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), sixty (i60) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by Holders of Notes evidencing not less than 10% of the aggregate unpaid principal amount of all 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 or delegate its duties under this Agreement, except as permitted by Sections 5.02 and 5.07;
(c) any representation, warranty or certification 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 an Adverse Effect on the rights of the Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which Adverse Effect continues for a period of 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 or the Indenture Trustee, or to the Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 5010% of the Certificateholders Ownership Interests aggregate unpaid principal amount of all 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 adversely affected thereby; orto which such representation, warranty or certification relates);
(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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 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 (60) days; or 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take obligations; or
(e) any corporate action in furtherance of any of the foregoing; then, so long as such other 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 Certificateholders Ownership Interests, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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 described in the Successor 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor 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.Indenture Supplement;
Appears in 1 contract
Sources: Transfer and Servicing Agreement (Signet Group PLC)
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 (other than with respect to any Credit Balances) or to give instructions to bank holding the Lockbox or notice to the Trustee pursuant to Article IV or to instruct the Trustee ACH Account to make any required drawingsuch payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five 3 Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Servicing Agreement, provided however, that where such failure is due to oversight, error or any other reason not including bad faith on the part of the Servicer, such 3 Business Day period shall commence upon notice to Servicer from Lender;
(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 Servicing Agreement (other than those set forth or in subsections 3.03(g), (i) and (j)), which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) Loan Origination Agreement and which continues unremedied for a period of 60 30 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 Lender;
(c) any representation, warranty or certification made by Servicer in this Servicing Agreement or in any certificate delivered pursuant to this Servicing Agreement shall prove to have been materially incorrect when made, which has a materially adverse effect on the TrusteeLoans (taken as a whole) and which materially adverse effect continues for a period of 30 days after the date on which notice thereof, or requiring the same to the be remedied, shall have been given to Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests of any Series adversely affected therebyLender; or
(d) 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 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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 for 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 daysdays or an order or decree providing for such relief shall have been entered; or 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoingobligations; then, so long as 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 Certificateholders Ownership InterestsLender, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "“Termination Notice"”), may terminate all all, but not less than all, of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) servicer under this Servicing Agreement and appoint a Successor Servicer, subject to Section 4.02.
(e) Servicer alters its servicing practices in and to the Receivables. Any determination a manner that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have has a material adverse effect on Holders the Loans, the ability of one Servicer to perform its obligations under this Servicing Agreement, the Loan Origination Agreement or more Series on the transactions contemplated hereunder in general, and which material adverse effect continues for a period of Certificates shall be made without regard to 30 calendar days after the availability earlier of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by (x) the date on which Servicer becomes aware of such Termination Notice, material adverse effect and on (y) the date that a Successor Servicer on which notice of such material adverse effect shall have been appointed given to Servicer by the Trustee pursuant Lender.
(f) Servicer experiences a material deterioration in its financial condition such that Servicer is unable to Section 10.02, all authority and power of the Servicer fulfill its obligations under this Servicing Agreement shall pass to and be vested in the Successor Servicer; andany material respect (such material deterioration in financial condition, 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 instrumentsa “Financial Condition Event”), and to do and accomplish all other acts or things necessary or appropriate to effect the purposes such Financial Condition Event continues unremedied for a period of such transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, including, without limitation, all authority over all Collections which shall on 90 calendar days after the date of transfer be held which notice of such Financial Condition Event shall either have given to Lender by the Servicer for deposit, or which have been deposited to Servicer 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 ServicerLender. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(ashall not constitute a Servicer Default (i) under paragraph (a) above for a period of 10 Business Days after the applicable grace period or (ii) under subsection 10.01(bparagraph (b) or (c) above for a period of 60 15 Business DaysDays 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, public disorder, rebellion, riot rebellion or sabotage, terrorism, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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 Servicing Agreement, and the Servicer shall provide the Trustee, any Credit Enhancement Provider, the Transferor and the Holders of Investor Certificates Lender 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: Servicing Agreement (GreenSky, 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 (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV make such payment, transfer or deposit or to instruct give notice to the Trustee as to make any required drawing, withdrawal, re- quired drawing or payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal deposit or 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 or any Supplement; 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 otherwise becoming aware of such failure; (b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j))or any Sup- plement, which has a material adverse effect on the Investor Certificateholders of any Series then outstanding (which determination shall be made without with- out regard to the availability amount of any Credit Enhancement or similar credit support deviceEnhancement) and which continues unremedied for a period of 60 days after the date on which the written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and requiring failure requir- ing the same to be remedied, 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 evidenc- ing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests Invested Amount of any Series materially adversely affected thereby thereby, and which continues to materially adversely ad- versely affect the rights of the Holders of Investor Certificates of such Investor Certificateholders Series (without regard to the amount of any Enhancement) for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.078.7; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification certifica- tion made by the Servicer in this Agreement or any Supplement Sup- plement or in any certificate (including without limitation any Monthly Servicer 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 Investor rights of the Certificateholders of any Series then outstanding (which determination shall be made without regard to the availability amount of any Credit Enhancement or similar credit support deviceEnhancement) 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 (without regard to the amount of any Enhancement) for a period of 60 days after the date on which written notice of such failure, requiring the same to be remediedreme- died, shall have been given to the Servicer by the TrusteeTrust- ee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 50% of the Certificateholders Ownership Interests Invested Amount of any Series adversely affected thereby; or
or (d) the Servicer shall consent to the appoint- ment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, 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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 undis- charged or unstayed for a period of 60 days; or 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 reorgani- zation statute, make an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoingobligations; then, so long as 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 Certificateholders Ownership InterestsInvested Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor CertificateholdersCertificate- holders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the ReceivablesReceivables and the proceeds thereof and appoint a new Servicer (a "Ser- vice Transfer"). Any determination that an inaccuracy The rights and interests of the Trans- feror Interest will not be affected by any Service Trans- fer. The Trustee, upon giving or other event, which with notice and/or the passage receiving a Termination Notice shall immediately notify each Rating Agency as- signing a rating for any class of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Investor Certificates shall be made without regard to the availability of any Credit then outstanding Series and any Enhancement or similar credit support device with respect to Pro- vider of such Seriesnotice. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant pursu- ant 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; 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 transfer of servicing rights and obligationsService 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 hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, 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 Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustRecoveries. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Trust Assets Receiv- ▇▇▇▇▇ 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 Trust Assets Receivables in the manner and at such times as the Successor Servicer shall reasonably reason- ably request. To the extent that compliance with this Section 10.01 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 Succes- sor Servicer shall be required to enter into such customary custom- ary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 Servicerinterest. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(a10.1(a) for a period of 10 Business Days after the applicable grace period or under subsection 10.01(b10.1(b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages outages, swarms of locusts or similar causes. The preceding sentence sen- tence shall not relieve the Servicer from using its best 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, any Credit Enhancement Provider, the Transferor and the Holders of Investor 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 the Trustee in writing of any Servicer Default.
Appears in 1 contract
Sources: Master Pooling and Servicing Agreement (Nordstrom Inc)
Servicer Defaults. If any one of the following events (a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by on the part of the Servicer to deliver the Receivables Activity Reports required under Section 3.07(c), to make any payment, transfer or deposit (other than with respect to any Credit Balances) deposit, or to give instructions or to give notice to the Trustee pursuant to Article IV Issuer or to instruct the Indenture Trustee to make any required drawingsuch payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement;
(bi) failure on the part of the Servicer duly to observe and perform its covenants to give payment instructions to Obligors pursuant to Section 3.05(f); to segregate Pool Collections pursuant to Section 3.05(g), to provide records pursuant to Section 3.07, to file financing or continuation statements provided to it pursuant to Section 3.02, or breach by the Servicer of any of its negative covenants set forth in Section 3.06, which failure or breach continues unremedied for ten calendar days, or (ii) 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 (other than those set forth in subsections 3.03(g), (i) and (j))Agreement, which failure has a material adverse effect Material Adverse Effect on the Investor Certificateholders rights of the holders of any Series of Notes (which determination shall be made determined without regard giving effect to the availability of any Credit Enhancement or similar third-party credit support deviceenhancement) and which continues unremedied for a period of 60 days 30 days, in each case, after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and requiring the same to be remedied, shall have has been given to the Servicer by the TrusteeIssuer, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% Issuer on behalf of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; Majority Investors, or the Servicer shall assign or delegate or assign its duties under this Agreement, Agreement except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support deviceSections 3.01(b) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure7.02;
(c) any representation, warranty or certification made by the Servicer in this Agreement or in any Supplement other Transaction Document or in any certificate (including without limitation any Monthly Servicer Report) delivered pursuant to this Agreement or any Supplement shall prove proves to have been incorrect when made, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues to be incorrect in any material respect when made, which failure has a Material Adverse Effect on the rights of the holders of any Series of Notes (determined without giving effect to any third-party credit enhancement) and which failure continues unremedied for a period of 60 30 days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have has been given to the Servicer by the TrusteeIssuer, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% Issuer on behalf of the Certificateholders Ownership Interests of any Series adversely affected therebyMajority Investors; or
(d) a decree or order an Event of a court or agency or supervisory authority having jurisdiction Bankruptcy occurs with respect to the Servicer; then, in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage event of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoing; thensuch Servicer Default, so long as such the Servicer Default shall not have been remedied, either remedied the TrusteeIndenture Trustee may, or at the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% direction of the Aggregate Certificateholders Ownership InterestsMajority Investors, the Indenture Trustee shall, by written notice then given in writing to the Servicer (and to the Indenture Trustee if given by the Investor CertificateholdersMajority Investors) (a "Termination NoticeTERMINATION NOTICE"), may terminate all or any part of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(bclause (a), (b) or (c) for a period of 60 10 Business Days, 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, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages floods or similar causescauses not within the Servicer's control. The preceding sentence shall does 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.
(e) The Indenture Trustee acting at the direction of the Majority Investors shall be entitled, by giving a Termination Notice to the Servicer, to terminate all or any part of the rights and obligations of CMSC as Servicer if:
(i) the Consolidated Net Worth of PHH on the last day of any fiscal quarter is less than the SUM of (i) $500,000,000 PLUS (ii) 50% of Consolidated Net Income, if positive, for each fiscal quarter after September 30, 1999; or
(ii) PHH Indebtedness less Cash Equivalents (owned by PHH or any of its Consolidated Subsidiaries and free of liens (other than liens securing Indebtedness)) exceeds six times Consolidated Net Worth; or
(iii) PHH fails to maintain a long-term unsecured debt rating of at least "BBB-" by Standard & Poor's and "Baa3" by ▇▇▇▇▇'▇' PROVIDED that if PHH has no outstanding long-term unsecured debt, then a shadow rating of PHH may be used to determine compliance with the foregoing rating requirement. 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 9.03, all authority and power of the Servicer under this Agreement (or, in the case of a partial transfer, such authority and power and a proportional portion of the Servicing Fee as is described in the Termination Notice) shall pass to and be vested in the Successor Servicer (a "SERVICE TRANSFER"); and 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 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 authority of the Servicer to service the Pool Receivables provided for under this Agreement, including (to the extent transferred) all authority over all Pool Collections that on the date of transfer are held by the Servicer for deposit, or which have been deposited by the Servicer in the Collection Account, or which thereafter are received with respect to the Receivables, and in assisting the Successor Servicer. The Servicer shall provide within 20 Business Days of such Termination Notice transfer its electronic records relating to the TrusteePool 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 9.01 requires the Servicer to disclose to the Successor Servicer information of any Credit Enhancement Providerkind that the Servicer deems to be confidential, the Transferor Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Holders of Investor Certificates with an Officer's Certificate giving prompt notice of such failure Servicer deems reasonably necessary to protect its interests. The Servicer being terminated (or delay by it, together with a description replaced in part) shall bear all costs of the cause appointment of such failure or delay a Successor Servicer hereunder, including but not limited to those of the Indenture Trustee reasonably allocable to specific employees and its efforts so to perform its obligationsoverhead, legal fees and expenses, accounting and financial consulting fees and expenses, and costs of amending the Transaction Documents, if necessary.
Appears in 1 contract
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 Any Designated Servicer or the Servicer Seller shall fail (i) to make any payment, transfer payment or deposit required hereunder when due and such failure shall remain unremedied for one Business Day, (ii) to perform or observe in any material respect any term, covenant or agreement hereunder relating to the Receivables, the Related Security, the Hohe Discount or the Collections or (iii) to perform or observe in any material respect any term, covenant or agreement hereunder (other than with respect as referred to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j)), which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), clause (i) or (jii) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series paragraph (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support devicea)) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, such failure shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;remain unremedied for five Business Days.
(cb) any Any representation, warranty warranty, certification or certification statement made by the Seller, any Designated Servicer or either Originator in this Agreement or Agreement, any Supplement other Transaction Document or in any certificate (including without limitation any Monthly Servicer Report) other document delivered pursuant to this Agreement or any Supplement hereto shall prove to have been incorrect when made, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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, when made or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby; ordeemed made.
(di) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under The Seller, any present or future federal or state bankruptcy, insolvency or other similar law 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 and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or 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, voluntary liquidation or similar proceedings of or relating to the Designated Servicer or of either Originator shall generally not pay its debts as such debts become due or relating to all or substantially all of its property; or the Servicer shall admit in writing its inability to pay its debts as they become due, file generally or shall make a petition to take advantage of any applicable insolvency or reorganization statute, make an general assignment for the benefit of creditors; or (ii) any proceeding shall be instituted by or against the Seller, any Designated Servicer (other than ▇▇▇▇▇▇▇▇) or Hohe 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 obligations property; or (iii) any proceeding shall be instituted by or against ▇▇▇▇▇▇▇▇ seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or 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 property unless (A) such proceeding is instituted against ▇▇▇▇▇▇▇▇ and is being contested by ▇▇▇▇▇▇▇▇ in good faith and by appropriate proceedings, (B) within two Michigan business days of the institution of such proceeding ▇▇▇▇▇▇▇▇ shall have obtained a court order (which may include an interim order) satisfactory to the Administrative Agent and the Required Investors authorizing the continued transfer of "Receivables", "Related Assets" and "Collections" under the ▇▇▇▇▇▇▇▇ Transfer Agreement and Receivable Interests hereunder in the manner (and with the effect) contemplated herein following commencement of such proceeding and granting protection to the Seller and the Purchasers against subsequent avoidance or subordination of such transfers by the trustee or any other Person in connection with such proceeding and (C) such proceeding shall be dismissed within 30 days of the institution thereof; or (iv) the Seller, any Designated Servicer or either Originator shall take any corporate action in furtherance of to authorize any of the foregoing; then, so long as 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 Certificateholders Ownership Interests, by notice then given actions set forth in writing to the Servicer clause (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(bi) or (iii) above in this subsection (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor 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
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 (other than with respect to any Credit Balances) or to give notice or instructions or notice to the Trustee pursuant to Article IV or to instruct the Indenture Trustee to make any required drawingwithdrawal or payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or drawing 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, 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 (other than those set forth in subsections 3.03(g), (i) and (j)), 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 the availability of any Credit Enhancement Series, Class or similar credit support device) Tranche and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 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 Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests aggregate unpaid principal amount of all Series, Classes or Tranches of Notes sustaining such Adverse Effect; or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06;
(c) any representation, warranty or certification 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 an Adverse Effect on the rights of the Noteholders of any Series adversely affected thereby; orSeries, Class or Tranche and which 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, the Owner Trustee, the Indenture Trustee and the Collateral Agent by the Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches of Notes to which such representation, warranty or certification relates;
(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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 for 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take obligations; or
(e) any corporate action other Servicer Default described in furtherance of any of the foregoingIndenture Supplement; then, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating more than 50% of the Aggregate Certificateholders Ownership Interestsaggregate unpaid principal amount of all affected Notes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "“Termination Notice"”), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement Agreement; 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 subsection 10.02(a) to act as a Successor Servicer and in and receives an Officer’s Certificate of the Servicer to the Receivables. Any determination effect that an inaccuracy or other event, the Servicer cannot in good faith cure the Servicer Default which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard gave rise to the availability Termination Notice, the Indenture Trustee shall assume the role of any Credit Enhancement or similar credit support device with respect to such SeriesSuccessor Servicer. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been 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; 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 transfer of servicing rights and obligationsService 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 includinghereunder, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Collateral provided for under this Agreement, including, without limitation, 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 Principal Account, and any Series Account, or which shall thereafter be received with respect to the Trust AssetsCollateral, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall promptly within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets Collateral 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(aparagraph (a) above for a period of 10 Business Days after the applicable grace period or under subsection 10.01(bparagraph (b) or (c) above for a period of 60 Business DaysDays 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, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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, any Credit Enhancement Providerthe Owner Trustee, the Transferor Collateral Agent and the Holders of Investor Certificates Transferor 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: 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 (i) to deliver any information to the Collateral Agent required pursuant to Section 6.01(f) on or before the date such information is required to be given under the terms of this Credit Agreement and such failure shall remain unremedied for three Business Days after written notice from the Collateral Agent, (ii) to deliver any other information or reports to the Collateral Agent required pursuant to Section 6.01 (including, without limitation, the failure to deliver any Servicer's Daily Report or Settlement Report) on or before the date such information, Servicer's Daily Report or Settlement Report is required to be given or made under the terms of this Credit Agreement and such failure shall (in the case of any report other than a Servicer's Daily Report or Settlement Report) remain unremedied for ten Business Days after written notice from the Collateral Agent, or (iii) to make any payment, transfer or deposit (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing or such instruction or notice deposit is required to be made or given, as the case may be, under the terms of this Agreement;Credit Agreement or any of the other Facility Documents to which it is a party; or
(b) any failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Credit Agreement (or any of the other than those set forth in subsections 3.03(g), (i) and (j))Facility Documents to which it is a party, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which failure continues unremedied for a period of 60 ten days after the date on which written notice of such failurethereof, stating that such notice is a "Notice of Servicer Default" hereunder and requiring the same to be remedied, shall have been given to the Servicer by the TrusteeCollateral Agent, or to the Servicer and the Trustee Collateral Agent by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% any of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such periodAdministrative Agent, the Surety, or Triple-A; or the Servicer shall delegate or assign its duties under this AgreementCredit Agreement or under any of the other Facility Documents to which it is a party, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph terms of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect shall have been given to the Servicer by the Trustee or to the Servicer Sections 10.02 and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;13.04; or
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement other Facility Document to which it is a party or in any certificate (including without limitation any Monthly Servicer Report) delivered pursuant to this Credit Agreement or any Supplement other Facility Document to which it is a party shall prove to have been incorrect when made, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 less than 50% of the Certificateholders Ownership Interests of any Series adversely affected therebywhen made; or
(d) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall consent become subject to an Insolvency Event; or
(e) a final judgment is rendered against Ag Services while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the appointment expiration of a conservator or receiver or liquidator in any insolvencysuch stay, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to such judgment is not discharged; or
(f) the Servicer or any Affiliate of or relating to all or substantially all of its property; or the Servicer shall admit in writing its inability fail to pay its debts any principal of or premium or interest on any Debt for which the Servicer is liable (whether as they become duea primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, file when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a petition regularly scheduled required prepayment) prior to take advantage the stated maturity thereof; or
(g) if the Servicer is Ag Services or an Affiliate of Ag Services, the occurrence of any applicable insolvency Event of Default specified in Section 9.01(l) or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of (r); or
(h) any of the foregoingCollateral Agent, the Administrative Agent, Triple-A or the Surety (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Agreement or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Agreement), or (3) has ceased to conduct its business in the ordinary course; thenor
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; THEN, so long as 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 Certificateholders Ownership Interests, Collateral Agent by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Servicer Termination Notice"), may at the request and shall at the direction of Triple-A or the Surety (and in either case, with the consent of the Liquidity Agent) terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute (such termination being herein called a "Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such SeriesTransfer"). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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 ServicerServicer appointed pursuant to Section 10.02; and, without limitation, the Trustee Collateral Agent 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 transfer of servicing rights and obligationsrights. The Servicer agrees to cooperate with the Trustee Collateral Agent and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Acquired Advances and Loan Documents provided for under this Agreement, including, without limitation, all authority over all any Collections which shall on the date of transfer be held by the Servicer for deposit, deposit or which have been deposited by the Servicer, withdrawal in a Lock-Box Account or the Collection Account, the Finance Charge Account, the Principal Account, and any Series Account, Account or which shall thereafter be received by the Servicer with respect to the Trust AssetsAcquired Advances and Loan Documents, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable under this Agreement including, without limitation, allowing the Successor Servicer's personnel access to the TrustServicer's premises for the purpose of collecting payments on the Acquired Advances and Loan Documents. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Trust Assets Acquired Advances and Loan Documents 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 Records and documents necessary for the continued servicing of the Trust Assets Acquired Advances and Loan Documents 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 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer interest and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software as shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. The Servicer shall, on the date of any servicing transfer, transfer all of its rights satisfactory in form and obligations under the Credit Enhancement with respect to any Series 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 subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 provisions of this Agreement and the Servicer shall provide the Trustee, any Credit Enhancement Provider, the Transferor and the Holders of Investor 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 obligationsparagraph.
Appears in 1 contract
Servicer Defaults. If any one of the following events (a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (other than with respect to any Credit Balances) or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Indenture Trustee to make any required drawingsuch payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five (5) Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing 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;
(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 (other than those set forth in subsections 3.03(g), (i) and (j)), which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) an Adverse Effect and which continues unremedied for a period of 60 sixty (60) days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by Holders of Notes evidencing not less than 10% of the aggregate unpaid principal amount of all 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 or delegate its duties under this Agreement, except as permitted by Sections 5.02 and 5.07;
(c) any representation, warranty or certification 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 an Adverse Effect on the rights of the Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which Adverse Effect continues for a period of 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, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 5010% of the Certificateholders Ownership Interests aggregate unpaid principal amount of all 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 adversely affected thereby; orto which such representation, warranty or certification relates);
(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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 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 (60) days; or 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoing; then, so long as 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 Certificateholders Ownership Interests, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor 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: Transfer and Servicing Agreement (Associates Credit Card Receivables Corp)
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 (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawingsuch payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five (5) Business Days after the date such payment, transfer, deposit, withdrawal deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this AgreementAgreement 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 (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 respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j))or any Supplement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) then outstanding and which continues unremedied for a period of 60 sixty (60) days after the date on which the written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and failure requiring the same to be remedied, remedied shall have been given to the Servicer by the TrusteeTrustee or by Investor Certificateholders evidencing interests aggregating more than 66 2/3% of the Invested Amounts of all Series, or and which continues to materially adversely affect the Servicer and the Trustee by rights of the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such periodSeries; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure8.7;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor rights of the Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) then outstanding 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 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 the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 50% of the Certificateholders Ownership Interests Invested Amount of any Series 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, 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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 sixty (60) days; or 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoingobligations; then, so long as 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 Certificateholders Ownership InterestsInvested Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the ReceivablesReceivables and the proceeds thereof and appoint a new Servicer (a "Service Transfer"). Any determination that an inaccuracy The rights and interests of the Transferor Interest will not be affected by any Service Transfer. The Trustee, upon giving or other event, which with notice and/or receiving a Termination Notice shall immediately notify the passage Rating Agencies of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Seriesnotice. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer of servicing rights and obligationsService 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 hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, 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 Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustRecoveries. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 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 reasonably necessary to protect its interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 Servicerinterest. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(aSection 10.1(a) for a period of 10 ten (10) Business Days after the applicable grace period or under subsection 10.01(bSection 10.1(b) or (c) for a period of 60 sixty (60) Business DaysDays 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor 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 the Trustee in writing of any Servicer Default.
Appears in 1 contract
Sources: Master Pooling and Servicing Agreement (Yamaha Motor 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 (other than with respect to any Credit Balances) or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Indenture Trustee to make any required drawingsuch payment, withdrawal, transfer or payment under any Credit Enhancement on or before the date occurring five Business Days after deposit by the date such payment, transfer, deposit, withdrawal transfer or drawing deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement;Servicing Agreement or the Indenture, and which continues unremedied for a period of five (5) Business Days after the date on which notice of such failure, requiring the same to be remedied, shall have been given by registered or certified mail to the Servicer by any Co-Issuer, any Loan Trustee, the Paying Agent or the Indenture Trustee, or to the Servicer, any Co-Issuer, any Loan Trustee, the Paying Agent and the Indenture Trustee by the Required Noteholders; 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 Servicing Agreement (other than those set forth in subsections 3.03(g), (i) and (j))or the Indenture, which failure has a material adverse effect on the Investor Certificateholders interests of any Series the Noteholders (which determination shall be made without regard to as determined by the availability of any Credit Enhancement or similar credit support device) Required Noteholders), and which continues unremedied for a period of 60 sixty (60) days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and requiring the same to be remedied, shall have been given by registered or certified mail to the Servicer by any Co-Issuer, any Loan Trustee, the Paying Agent or the Indenture Trustee, or to the Servicer Servicer, any Co-Issuer, any Loan Trustee, the Paying Agent and the Indenture Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such periodRequired Noteholders; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;or
(c) any representation, warranty or certification made by the Servicer in this Servicing Agreement or any Supplement the Indenture or in any certificate (including without limitation any Monthly Servicer Report) delivered pursuant to this Servicing Agreement or any Supplement the Indenture shall prove to have been incorrect in any material respect when made or deemed made, which and such failure has a material adverse effect on the Investor Certificateholders interests of any Series the Noteholders (which determination shall be made without regard to as determined by the availability of any Credit Enhancement or similar credit support device) Required Noteholders), and which continues to be incorrect in any material respect unremedied for a period of 60 thirty (30) days after the date on which written a notice of specifying such failure, incorrect representation or warranty and requiring the same to be remedied, shall have been given by registered or certified mail to the Servicer by any Co-Issuer, any Loan Trustee, the Paying Agent or the Indenture Trustee, or to the Servicer Servicer, any Co-Issuer, any Loan Trustee, the Paying Agent and the Indenture Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests of any Series adversely affected therebyRequired Holders; or
(d) a decree or order of a court or agency or supervisory authority having jurisdiction an Insolvency Event shall occur with respect to the Servicer; then, in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage event of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoing; thenServicer Default, so long as such a Servicer Default shall not have been remediedis continuing, either the Trustee, or Indenture Trustee may (and upon the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% written direction of the Aggregate Certificateholders Ownership InterestsRequired Noteholders shall), by notice then given in writing to the Servicer, the Co-Issuers, the Loan Trustees, the Paying Agent and the Back-up Servicer (and to the Trustee if given by the Investor Certificateholders) (a "“Termination Notice"”), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Servicing Agreement and in and to the ReceivablesIndenture. Any determination that an inaccuracy or other event, which with notice and/or the passage The existence of time would constitute a Servicer Default, would have a material adverse effect on Holders Default may be waived with the consent of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such SeriesRequired Noteholders. After receipt by the Servicer of such a Termination Notice, and effective on the date that a on which the Successor Servicer shall have been appointed by assumes the Trustee pursuant to Section 10.02servicing obligations hereunder, all authority and power of the Servicer under this Servicing Agreement shall pass to and be vested in the Successor ServicerServicer (a “Successor Servicing Transfer”) appointed by the Indenture Trustee pursuant to Section 5.02; and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperatecooperate promptly) 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 transfer Successor Servicing Transfer. Notwithstanding the receipt of the Servicer of a Termination Notice, the terminated Servicer shall, as provided in Section 5.02(a), continue to be bound to perform as Servicer in accordance with the terms of this Servicing Agreement until the Successor Servicer has assumed such servicing rights and obligations. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder includingand (ii) transferring all duties and obligations of the Servicer hereunder to such Successor Servicer, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service and administer the Trust Assets Loans provided for under this Servicing Agreement, including, without limitation, 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 Principal Account, and any Series Account, or which shall thereafter be received with respect to the Trust AssetsLoans, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustServicer. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Trust Assets to work with the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly to transfer to the Successor Servicer all its electronic records relating to the Loans, together with all other records, correspondence and documents necessary for the continued servicing and administration of the Trust Assets Loans in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that a Servicer Default gives rise to the Successor Servicing Transfer, the predecessor Servicer shall be responsible for all reasonable expenses incurred in transferring the servicing duties to the Successor Servicer; provided that Servicer shall be entitled to be reimbursed for all amounts to which Servicer is entitled pursuant to Section 2.02, and any other amounts owed to Servicer under this Servicing Agreement as of such termination date. 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 confidentialconfidential or give the Successor Servicer access to software or other intellectual property, 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(aparagraph (a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, above 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, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages floods or similar causes. If, following the expiration of the sixty (60)-day period in the case of a delay or failure of performance described in paragraph (b) above or the thirty (30)-day period in the case of a delay or failure of performance described in paragraph (c) above, the applicable delay or failure of performance remains outstanding but the Servicer continues to work diligently to remedy such delay or failure of performance, then Servicer shall have an additional thirty (30) days upon notice from the Servicer to the Indenture Trustee to attempt to recommence performance. If performance has not substantially resumed after such additional thirty (30) day period, then the Indenture Trustee may terminate the Servicer by written notice to the Servicer. Such notice shall specify the event upon which the termination is based. Termination under this paragraph shall be effective immediately upon delivery of the notice. Servicer shall not have any liability to any party as a consequence of any such termination, other than with respect to obligations accrued and unperformed as of the date of termination. The preceding sentence sentences 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 Servicing Agreement and the Indenture and the Servicer shall provide the Trustee, any Credit Enhancement Provider, the Transferor Indenture Trustee and the Holders of Investor Certificates Co-Issuers 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 far to perform its obligations.
Appears in 1 contract
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 (other than with respect to any Credit Balances) or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawingpayment, withdrawal, transfer or payment deposit or to take any action under any Credit Enhancement Agreement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this 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 respect any other covenants or agreements of the Servicer set forth in this Agreement (other than with respect to those set forth specified in subsections 3.03(gclause (a) or (b) above and with respect to clauses (viii), (iix) and (j))x) 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 the availability of any Credit Enhancement or similar credit support device) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), thirty (i30) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 less than 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby; or;
(d) any representation, warranty or certification 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 rights of the Investor Certificateholders of any Series 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 the Servicer shall have repurchased the related Receivables or, if applicable, all of such Receivables during such period in accordance with the provisions of this Agreement;
(e) 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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action obligations; then, in furtherance the event of any of the foregoing; thenServicer Default, so long as such 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 Certificateholders Ownership Interests, by notice then given in writing to the Servicer (and to the Trustee 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 (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or Receivables and the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Seriesproceeds thereof. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer 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; 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 transfer of servicing rights and obligationsService 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 includinghereunder, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, including, without limitation, 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 Principal Account, and any Series Account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustServicer. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 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 reasonably necessary to protect its interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 Servicerinterest. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(aunder Section 10.1(a) for a period of 10 Business Days or under subsection 10.01(bSection 10.1(b), (c) or (cd) for a period of 60 Business Days, 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, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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, any Credit Agents, any Enhancement ProviderProviders, the Transferor Seller and the Holders of Investor Certificates Certificateholders with an Officer's Officers' 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 1 contract
Sources: Pooling and Servicing Agreement (CDF Funding, Inc.)
Servicer Defaults. If any one of the following events (each, a ----------------- "Servicer Default") shall occur and be continuing:occur: ----------------
(a) any failure by Servicer to endorse and deposit on a daily basis the Servicer contents of the Lockbox Account pursuant to Section 4.02, to direct the Lockbox ------------ Account Bank to make deposits in the Investment Account at the times specified herein, to make any paymentServicer Advance in accordance with Section 3.03, transfer to make ------------ any deposits to the Investment Account of Collections received or deposit (other than with respect required to any Credit Balances) or be made by Servicer at the times specified herein, to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any a required drawingdrawing under the Letter of Credit or to make a Cash Collateral Withdrawal or to make the payments and deposits on a Deposit Date in accordance with Section 4.08(b), withdrawal, or payment under any Credit Enhancement in each case on or before the date --------------- occurring five (5) Business Days after the date such payment, transfer, deposit, withdrawal or drawing wire transfer or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement;
(b) failure on the part of Servicer to deliver the Monthly Statement in accordance with Section 3.09(a); ---------------
(c) failure on the part of Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g)Agreement, (i) and (j)), which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues to be incorrect in any material respect 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 the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Majority Certificateholders Ownership Interests of any Series adversely affected therebyor Bond Insurer; oror , except as provided in Section ------- 9.02
(a) hereof, Servicer shall delegate or attempt to delegate its duties under ------- this Agreement;
(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 the rights of the Certificateholders or Bond Insurer or on the ability of Servicer to perform its obligations hereunder and which continues to be incorrect in any material respect for a period of 30 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to Servicer by Trustee, or to Servicer and Trustee by the Majority Certificateholders or Bond Insurer;
(e) 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 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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations obligations; a petition is filed against Servicer seeking relief under the bankruptcy, arrangement, reorganization or take other debtor relief laws of the United States or any corporate action state or other competent jurisdiction, and such petition, order, judgment or decree shall have remained in furtherance force, undischarged or unstayed for a period of sixty (60) days after its entry;
(f) in the case of Rockford while acting as Servicer, (i) any of the events referred to in Sections 2.04 (h), (j) (other than a "threatened" action, ------------- proceeding or investigation, or an order, judgment or decree "proposed to be issued," as described therein), (l) or (m) of the Purchase Agreement shall have occurred, (ii) Sections 2.04(g) of the Purchase Agreement shall not have been ---------------- complied with, or (ii) the Net Worth Requirement shall not have been satisfied;
(g) there shall at any one time be Defaulted Lease Contracts with Discounted Lease Contract Balances exceeding in the aggregate 3% of the then Initial Aggregate Certificate Principal Balance (in making such determination, the Discounted Lease Contract Balance of a Defaulted Lease Contract shall be determined without giving effect to the proviso in the definition of "Discounted Lease Contract Balance");
(h) there shall at any one time be Delinquent Lease Contracts with Discounted Lease Contract Balances exceeding in the aggregate 8.5% of the Aggregate Discounted Lease Contract Balance;
(i) there shall at any one time be Pre-Default Lease Contracts with Discounted Lease Contract Balances exceeding in the aggregate 2.5% of the Aggregate Discounted Lease Contract Balance;
(j) the ratio of Servicer's indebtedness exclusive of non-recourse indebtedness (as determined in accordance with generally accepted accounting principles consistently applied) to its shareholders' equity shall be greater than 4:1, as of the end of any fiscal quarter of Servicer:
(k) there shall be a downgrading of the rating of any of the foregoingCertificates by any Rating Agency;
(l) the Available Amount shall be less than the Minimum Available Amount; or
(m) the Default Charge-off Ratio shall be more than 2.75%; (provided, however, that if, after the Initial Cut-Off Date, Servicer shall -------- ------- merge, consolidate or effect any other corporate structural change, including without limitation any sale of the majority of its voting securities or transfer of ownership, the Controlling Party shall have the right, in its sole discretion, to modify the foregoing Servicer Defaults) then, so long as such Servicer Default shall not have been remediedTrustee may or, either at the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% written direction of the Aggregate Certificateholders Ownership InterestsControlling Party, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may shall terminate all of the rights and ------------------ obligations of the Servicer Rockford as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as "Servicer) under this Agreement " hereunder and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or Trust Assets and the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Seriesproceeds thereof. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall shall, with the prior written consent of the Controlling Party, pass to and be vested in the Successor Back-up Servicer; and, without limitation, the Seller, Back-up Servicer and Trustee is are 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 transfer of servicing rights and obligationsrights. The Servicer agrees to cooperate with Seller, Back-up Servicer, the Controlling Party and Trustee and such any Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, including, without limitation, and all authority over the Accounts and 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, Servicer in the Collection Account, Investment Account or the Finance Charge Account, the Principal Account, and any Series Account, Certificate Accounts or which shall thereafter be received with respect to the Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustInsurance Proceeds. The Servicer shall promptly transfer its electronic records or electronic copies thereof Lease Management System relating to the Trust Assets to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request request, and shall promptly transfer to the Successor Servicer all other records, the Lease Files, correspondence and documents necessary for the continued servicing of the Trust Assets in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.01 9.01 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor 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 obligationsinterest.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Rockford Industries 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 (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this 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 otherwise becoming aware of such failure;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j))Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests Invested Amount of any Series materially adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 less than 50% of the Certificateholders Ownership Interests Invested Amount of any Series materially adversely affected therebythereby and continues to materially adversely affect such Investor Certificateholders for such period; or
(d) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoing; then, so long as 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 Certificateholders Ownership Interests, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor 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 (Green Tree Financial 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 (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV the terms of this Agreement or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement Supplement on or before the date date, occurring five ten Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this AgreementAgreement 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 (other than those set forth in subsections 3.03(g), (i) and (j)), 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 the availability of whether funds are then available pursuant to any Credit Enhancement or similar credit support deviceSeries Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 5033% of the Certificateholders Ownership Interests 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 adversely affected thereby and continues to materially adversely affect which such Investor Certificateholders for such periodfailure relates); or the Servicer shall delegate or assign its duties under this Agreement, Agreement except as permitted by Section 8.02 or and 8.07; provided, howevera Responsible officer, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements Trustee as actual knowledge of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) such delegation and which such delegation continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 unremedied for 15 days after the date (following such removal) on which written notice of such continuing material adverse effect thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee Trustee, or to the Servicer and the Trustee by the Holders of -71- 77 Investor Certificates evidencing Undivided Interests aggregating not less than 5010% of the Certificateholders Ownership Interests aggregate unpaid principal amount of any Series adversely affected thereby, remedied such failureall Investor Certificates;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer Report) 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 the availability of whether funds are then available pursuant to any Credit Enhancement or similar credit support deviceSeries Enhancement) 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 Certificates, evidencing Undivided Interests aggregating not less than 5033% of the Certificateholders Ownership Interests aggregate unpaid principal amount of all Investor Certificates (with respect to any such representation, warranty or certification that does not relate to all Series, 33% of the aggregate unpaid principal amount of all Series adversely affected therebyto 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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action obligations; then, in furtherance the event of any of the foregoing; thenServicer Default, so long as such 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 Certificateholders Ownership Interestsaggregate unpaid principal amount of all outstanding Series, by written notice then given in writing to the Servicer (and to the Trustee and any Series Enhancer entitled thereto pursuant to the relevant Supplement if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination 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 inaccuracy Officer's Certificate of the Servicer or other eventthe Depositor, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability 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 any Credit Enhancement or similar credit support device with respect first refusal to the Depositor which would permit the Depositor to purchase the 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 equal to the higher of such Series. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer of servicing rights and obligationsrights. 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, including the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, including, without limitation, 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 Principal Account, and any Series Account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustInsurance Proceeds. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 reasonably been necessary to protect its interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 any delay in or failure of performance referred to in subsection under Section 10.01(a) for a period of 10 five Business Days or under subsection Section 10.01(b) or (c) for or a period of 60 Business Days90 days (in addition to any period provided in Section 10.01(a), (b) or (c)) 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, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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 -73- 79 Rating Agency, any Credit Enhancement ProviderSeries Enhancer entitled thereto pursuant to the relevant Supplement, each Holder of the Transferor Depositor's Certificate and the Holders of Investor Certificates Certificateholders 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 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 (other than with respect to any Credit Balances) or to give instructions to bank holding the Lockbox or notice to the Trustee pursuant to Article IV or to instruct the Trustee ACH Account to make any required drawingsuch payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five 3 Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Servicing Agreement, provided however, that where such failure is due to oversight, error or any other reason not including bad faith on the part of Servicer, such 3 Business Day period shall commence upon notice to Servicer from Buyers;
(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 Servicing Agreement (other than those set forth in subsections 3.03(g), (i) and (j)), which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues unremedied for a period of 60 30 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 Buyers;
(c) any representation, warranty or certification made by Servicer in this Servicing Agreement or in any certificate delivered pursuant to this Servicing Agreement shall prove to have been materially incorrect when made, which has a materially adverse effect on the TrusteeLoans (taken as a whole) and which materially adverse effect continues for a period of 30 days after the date on which notice thereof, or requiring the same to the be remedied, shall have been given to Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests of Buyers;
(d) any Series adversely affected therebyNon-Compliance Event; or
(de) 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 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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 for 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 daysdays or an order or decree providing for such relief shall have been entered; or 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoingobligations; then, so long as 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 Certificateholders Ownership InterestsBuyers, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "“Termination Notice"”), may terminate all all, but not less than all, of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) servicer under this Servicing Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer of such Termination Notice, and on the date that appoint a Successor Servicer shall have been appointed by the Trustee pursuant Servicer, subject to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 Servicer4.2. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(ashall not constitute a Servicer Default (i) under paragraph (a) above for a period of 10 Business Days after the applicable grace period or (ii) under subsection 10.01(bparagraph (b), (c) or (cd) above for a period of 60 15 Business DaysDays 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, public disorder, rebellion, riot rebellion or sabotage, terrorism, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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 Servicing Agreement, and the Servicer shall provide the Trustee, any Credit Enhancement Provider, the Transferor and the Holders of Investor Certificates Buyers 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. In addition, if Servicer experiences a material deterioration in its financial condition such that Servicer is unable to fulfill its obligations under this Servicing Agreement in a material respect (such material deterioration in financial condition, a “Financial Condition Event”), Servicer shall promptly give notice to Buyers of such Financial Condition Event. Each of Buyers and Servicer shall have the right, at their respective option, to terminate all, but not less than all, of the rights and obligations of Servicer as servicer under this Servicing Agreement and have Buyers appoint a Successor Servicer, subject to Section 4.2, by providing a Termination Notice to the other party upon 90 days prior written notice, unless Servicer cures such Financial Condition Event within such 90 days. If a Financial Condition Event is not cured within such 90 days, then such Financial Condition Event shall constitute a Servicer Default.
Appears in 1 contract
Sources: Servicing Agreement (GreenSky, Inc.)
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 (other than with respect to the Certificate Distribution Account any Credit Balances) required payment or to give instructions or notice to direct the Trustee pursuant to Article IV or to instruct the Indenture Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j))distributions therefrom, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which failure 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, stating that such notice is a "Notice of Servicer Default" hereunder and 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 Undivided Interests aggregating not less than 5025% of the Certificateholders Ownership Interests Outstanding Amount of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Notes;
(b) failure by the Servicer shall delegate (or assign its duties under this Agreement, except so long as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of 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 subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer Report) 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 Investor rights of Certificateholders of any Series or Noteholders and (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support deviceii) and which continues to be incorrect in any material respect continue unremedied for a period of 60 90 days after the date on which written notice of 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 Undivided Interests aggregating not less than 5025% of the Certificateholders Ownership Interests Outstanding Amount of any Series adversely affected therebythe Notes; or
(dc) a decree or order the occurrence of a court or agency or supervisory authority having jurisdiction in an Insolvency Event with respect to the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; Seller or 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoingServicer; then, and in each and every case, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating more not less than 5025% of the Aggregate Certificateholders Ownership Outstanding Amount of the 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 if given by the Investor CertificateholdersNoteholders) (a "Termination Notice"), may terminate all of 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 as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the ReceivablesAgreement. Any determination that an inaccuracy On or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer of such Termination Notice, and on after the date that a Successor Servicer shall have been 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 ServicerServicer 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 notice of termination, whether to complete the transfer and endorsement of servicing rights the Receivables and obligationsrelated 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 hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, including, without limitation, including the transfer to the Successor Servicer for administration by it of all authority over all Collections which cash amounts that shall on at 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 the Finance Charge Account, the Principal Account, and any Series Account, Certificate Distribution Account or which shall thereafter be received with respect to the Trust Assets, Receivables that shall at that time by held by the predecessor Servicer. All reasonable costs and expenses (including servicer conversion costs and attorneys' fees) incurred in assisting connection with transferring the Receivable Files to the Successor Servicer and in enforcing all rights amending this Agreement to Recoveries allocable reflect such succession as Servicer pursuant to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned paid by the predecessor Servicer upon presentation of reasonable documentation of such costs and which is used by the Servicer expenses. Any costs or expenses incurred in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, shall not constitute 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 ProviderDefault, the Transferor and the Holders of Investor Certificates with an Officer's Certificate giving prompt Indenture Trustee shall give notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so thereof to perform its obligationseach Rating Agency.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Honda Auto Receivables 2008-1 Owner Trust)
Servicer Defaults. If The happening of any one or more of the following events (shall constitute a "Servicer Default") shall occur and be continuingDefault hereunder:
(a) any Any failure by the either Servicer to make any payment, transfer or deposit (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal advance or drawing or such instruction or notice is transfer of funds required to be made paid, deposited, advanced or given, as the case may be, transferred under the terms of this Agreement, and such failure continues unremedied for five (5) days after discovery by such Servicer of such failure or receipt by such Servicer of notice of such failure;
(b) failure Failure on the part of the either Servicer duly to observe or perform in any material respect any other of its respective covenants or agreements of the Servicer set forth contained in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j)), which has a material adverse effect on or the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and Supervisory Servicing Agreement which continues unremedied for a period of 60 thirty (30) days after the date on which earlier to occur of the Servicer obtaining actual knowledge of such failure or the Servicer's receipt of written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and requiring failure or breach as 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07case may be; provided, however, if such failure shall be of a nature that it cannot be cured within thirty (30) days, such failure on the part of shall not constitute a Servicer Default hereunder if within such 30-day period the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard gives notice to the availability of any Credit Enhancement or similar credit support device) Trustee and which continues after, and notwithstanding, the removal by the Supervisory Servicer of the related Receivable corrective action it proposes to take, which corrective action is agreed in accordance with writing by the last paragraph of Section 3.03, shall Trustee to be a Servicer Default unless satisfactory and the Servicer shall have, within 60 thereafter pursue such corrective action diligently until such default is cured but in no event longer than ninety (90) days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failureis given;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 less than 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby; or
(d) a A decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law for the appointment of a conservator or receiver or liquidator in any insolvency, bankruptcy, 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 a Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 ninety (90) days; or the ;
(d) A Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling marshaling of assets and liabilities, voluntary liquidation liabilities or similar proceedings of or relating to the such Servicer or of or relating to all or substantially all of its property; or the ;
(e) A 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 insolvency, bankruptcy or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment payments of its obligations or take any corporate action obligations;
(f) A Servicer shall cease to be an Eligible Servicer;
(g) A material adverse change occurs in furtherance the financial condition of any of a Servicer, which change materially impairs the foregoing; then, so long as 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 Certificateholders Ownership Interests, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations ability of the Servicer as to perform its obligations under this Agreement; or
(h) Any representation or warranty made by a Servicer (in any Transaction Document proves to have been incorrect in any material respect when made, which has a material adverse effect on the Noteholders and which termination shall apply continues to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders or be incorrect in any material respect for a period of one or more Series thirty (30) days after written notice of Certificates shall such inaccuracy, requiring it to be made without regard remedied, has been given to the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt Servicers by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; and, without limitationTrustee, the Trustee is hereby authorized and empowered (upon the failure of the Supervisory 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related ReceivablesNoteholder; provided, however, if such inaccuracy is of a nature that it cannot be remedied within such software shall be used 30-day period and the Servicer gives notices to the Trustee and the Supervisory Servicer of the corrective action it proposes to take, which corrective action is agreed in writing by the Successor Servicer solely for the purposes of servicing the Trust Assets. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under the Credit Enhancement with respect Trustee to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 satisfactory and the Servicer shall provide thereafter pursue such corrective action diligently until such default is cured but in no event longer than ninety (90) days from the Trustee, any Credit Enhancement Provider, the Transferor and the Holders of Investor Certificates with an Officer's Certificate giving prompt notice date 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 obligationsnotice.
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 (other than with respect to any Credit Balances) or to give notice or instructions or notice to the Trustee pursuant to Article IV or to instruct the Indenture Trustee to make any required drawingwithdrawal or payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or drawing 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, 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 (other than those set forth in subsections 3.03(g), (i) and (j)), 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 the availability of any Credit Enhancement Series, Class or similar credit support device) Tranche and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer Servicer, the Owner Trustee, the Indenture Trustee and the Trustee applicable Collateral Agent by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests aggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06;
(c) any representation, warranty or certification 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 an Adverse Effect on the rights of the Noteholders of any Series adversely affected thereby; Series, Class or Tranche and which 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 applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(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, readjust- ment 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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take obligations; or
(e) any corporate action in furtherance of any of the foregoing; then, so long as such other 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 Certificateholders Ownership Interests, by notice then given described in writing any Indenture Supplement.
(a) to the act as a Successor Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations receives an Officer's Certificate of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination effect that an inaccuracy or other event, the Servicer cannot in good faith cure the Servicer Default which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard gave rise to the availability Termination Notice, the Indenture Trustee shall assume the role of any Credit Enhancement or similar credit support device with respect to such SeriesSuccessor Servicer. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been 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; 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 transfer of servicing rights and obligationsService 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 includinghereunder, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Collateral provided for under this Agreement, 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, Account for the Finance Charge Account, the Principal Account, and any Series Accountapplicable Asset Pool, or which shall thereafter be received with respect to the Trust AssetsCollateral, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall promptly within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets Collateral 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(aparagraph (a) above for a period of 10 Business Days after the applicable grace period or under subsection 10.01(bparagraph (b) or (c) above for a period of 60 Business DaysDays 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, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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, any Credit Enhancement Providerthe Owner Trustee, the applicable Collateral Agent and each Transferor and the Holders of Investor 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: Transfer and Servicing Agreement (First Usa Credit Card Master 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 any payment, transfer deposit or deposit (other than with respect to any Credit Balances) or to give instructions or notice credit to the Trustee pursuant to Article IV or to instruct the Trustee to make Collection Account any amount required drawing, withdrawal, or payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or drawing or such instruction or notice is required this Agreement to be made so deposited or given, as the case may be, under the terms of this Agreement;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j))credited, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which failure continues unremedied for a period of 60 days three Business Days after discovery by the date on which Servicer or receipt by the Servicer of written notice of such failurefailure from the Issuer, stating that the Indenture Trustee or the Insurer or after discovery of such notice is a "Notice of Servicer Default" hereunder and requiring the same to be remedied, shall have been given to the Servicer failure by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% an officer of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; Servicer;
(b) the Insurer, the Indenture Trustee or the Servicer Issuer shall delegate or assign its duties under this Agreement, except as permitted by not have received a report in accordance with Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal 3.09 by the Servicer of the related Receivable in accordance Report Date with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following respect to which such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) report is due and which continues to be incorrect in any material respect shall continue unremedied for a period of 60 days one day after the date on which written notice of such failure, requiring the same to be remedied, shall have been given;
(c) failure on the part of the Seller, the Issuer or the Servicer duly to observe or to perform in any material respect any other covenants or agreements of the Seller or the Servicer set forth in this Agreement or any other Basic Document, which failure shall (i) materially and adversely affect the rights of the Noteholders, the Insurer, the Issuer, the Owner Trustee or the Indenture Trustee and (ii) continue unremedied for a period of 30 days after the date on which the Seller, the Issuer, the Custodian or the Servicer shall have knowledge of such failure or written notice of such failure, requiring the same to be remedied, shall have been given (A) to the Servicer Seller or the Servicer, as the case may be, by the TrusteeInsurer, the Issuer, the Owner Trustee or the Indenture Trustee or (B) to the Servicer Seller or the Servicer, as the case may be, and to the Issuer and the Indenture Trustee by Noteholders, acting together as a single class, evidencing in the Holders of Investor Certificates evidencing Undivided Interests aggregating aggregate not less than 5025% of the Certificateholders Ownership Interests outstanding principal amount of any Series adversely affected thereby; the Notes or, so long as no Insurer Default has occurred and is continuing, by the Insurer;
(d) the entry of a decree or order of for relief by a court or agency or supervisory regulatory authority having jurisdiction in respect of the premises Servicer or the Seller in an involuntary case under the federal bankruptcy laws, as now or hereafter in effect, or another present or future, federal or state, bankruptcy, insolvency or similar law, or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Servicer or the Seller or of any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Servicer or the Seller and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the commencement of an involuntary case under the federal bankruptcy laws, as now or hereinafter in effect, or another present or future federal or state bankruptcy, insolvency or other similar law for and such case is not dismissed within 60 days;
(e) the appointment commencement by the Servicer or the Seller of a conservator voluntary case under the federal bankruptcy laws, as now or receiver hereafter in effect, or liquidator in any insolvencyother present or future, readjustment of debtfederal or state, marshalling of assets and liabilities bankruptcy, insolvency or similar proceedingslaw, or for the winding-up or liquidation of its affairs, shall have been entered against consent by 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 consent Seller to the appointment of or taking possession by a conservator receiver, liquidator, assignee, trustee, custodian, sequestrator or receiver or liquidator in any insolvency, readjustment other similar official of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or the Seller or of or relating to all or substantially all any substantial part of its property; property or the making by the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage or the Seller of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment the failure by the Servicer or the Seller generally to pay its debts as such debts become due or the taking of its obligations or take any corporate action by the Servicer or the Seller in furtherance of any of the foregoing;
(f) any change of control of the Servicer in violation of the covenant set forth in Section 6.02 hereof;
(g) the Servicer shall have failed in the reasonable opinion of the Insurer to service the Contracts in accordance with the Servicing Standards and such failure shall have continued unremedied for 30 days after written notice of such failure shall have been delivered to the Servicer by the Insurer;
(h) any representation, warranty or statement of the Servicer or the Seller made in this Agreement or any certificate, report or other writing delivered pursuant hereto shall prove to be incorrect in any material respect as of the time when the same shall have been made (excluding, however, any representation or warranty as to which Section 2.03 or 3.07 shall be applicable so long as the Servicer or the Seller shall be in compliance with Section 2.03 or 3.07, as the case may be), and the incorrectness of such representation, warranty or statement has a material adverse effect on the Noteholders or the Insurer and, within 30 days after written notice thereof shall have been given to the Servicer or the Seller by the Indenture Trustee or the Issuer or by Noteholders, acting together as a single class, evidencing in the aggregate not less than 25% of the outstanding principal amount of the Notes, or so long as no Insurer Default has occurred, by the Insurer, the circumstance or condition 76 in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured; thenthen and in each and every case, so long as such Servicer Default shall not have been remedied, either (i) if no Insurer Default has occurred and is continuing, the TrusteeInsurer or (ii) if an Insurer Default has occurred and is continuing, or the Holders Indenture Trustee acting at the direction of Investor Certificates (a) if the Notes have not been paid in full, the Noteholders evidencing Undivided Interests aggregating more not less than 5025% of the Aggregate Certificateholders Ownership Interestsoutstanding amount of the Notes, acting together as a single Class, by notice then given in writing to the Servicer (and to the Insurer, the Indenture Trustee and the Issuer if given by the Investor CertificateholdersNoteholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer under this Agreement. Upon such termination, termination of the Servicer as custodian, if the Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other eventsuch, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall can be made without regard pursuant to Section 2.08. On or after the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.02written notice, all authority and power of the Servicer under this Agreement shall Agreement, whether with respect to the Notes, the Contracts or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer; Servicer as may be appointed under Section 7.02 and, without limitation, the Indenture Trustee is and the Issuer are hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, deliver on behalf of the 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 notice of termination, whether to complete the transfer and endorsement of servicing rights the Contracts and obligationsrelated documents, or otherwise. The Servicer agrees to shall cooperate with the Trustee Indenture Trustee, the Insurer and such Successor Servicer the Issuer in effecting the termination transfer of the responsibilities and rights of the Servicer under this Agreement (whether due to conduct servicing hereunder includingtermination, without limitationresignation or otherwise), including the transfer to the Indenture Trustee or such Successor Servicer Servicer, as applicable, for administration by it of all authority of cash amounts that (i) shall at the Servicer to service the Trust Assets provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer time be held by the Servicer for depositdeposit in, or which shall have been deposited by the ServicerServicer in, in the Collection Account, the Finance Charge Account, the Principal Account, and any Series Account, Account or which (ii) shall thereafter be received with respect to the Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under the Credit Enhancement it with respect to any Series Contract. The predecessor Servicer shall pay all costs of the Successor Servicer associated with its transition to the role of Successor Servicer. Notwithstanding the foregoingServicer (whether due to termination, a delay in resignation or failure of performance referred to in subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor 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 obligationsotherwise).
Appears in 1 contract
Sources: Sale and Servicing Agreement (Auto Nations 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 ITT to make any payment, transfer or deposit (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement hereunder on or before the date occurring five (5) Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing or such instruction or notice deposit is required to be made or given, as the case may be, under the terms of this Agreement; provided, however, that any such failure caused by a nonwillful act of ITT shall not constitute a Servicer Default if ITT 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 ITT duly to observe or perform in any respect any other covenants or agreements of the Servicer ITT set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j))Agreement, which has a material an adverse effect on Yamaha's rights in the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) Receivables and which continues unremedied for a period of 60 sixty (60) days after the date on which the written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and failure requiring the same to be remedied, remedied shall have been given to ITT and which continues to adversely affect Yamaha's rights in the Servicer by the TrusteeReceivables, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer ITT shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer ITT in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer Report) delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material an adverse effect on Yamaha's rights in the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) Receivables and which continues to be incorrect in any material respect and which continues to affect adversely Yamaha's right in the Receivables 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 ITT by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests of any Series adversely affected therebyYamaha; or
(d) ITT 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 ITT 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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 ITT 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or the Servicer ITT 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoingobligations; then, so long as 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 Certificateholders Ownership InterestsYamaha, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) ITT (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer ITT as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in in, to and to under the Receivables. Any determination that an inaccuracy or other event, which with notice and/or Receivables and the passage of time would constitute proceeds thereof and appoint a new Servicer Default, would have (a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Series"Service Transfer"). After receipt by the Servicer ITT of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee Yamaha pursuant to Section 10.024.2, all authority and power of the Servicer ITT under this Agreement shall pass to and be vested in the such Successor Servicer; and, without limitation, the Trustee Yamaha is hereby authorized and empowered (upon the failure of the Servicer ITT to cooperate) to execute and deliver, on behalf of the ServicerITT, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer ITT 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 transfer of servicing rights and obligationsService Transfer. The Servicer ITT agrees to cooperate with the Trustee Yamaha and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer ITT to conduct servicing hereunder hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer ITT to service the Trust Assets Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer ITT for deposit, or which have been deposited by the ServicerITT, in the Collection Account, the Finance Charge Account, the Principal Account, and any Series Concentration Account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trustrecoveries. The Servicer ITT shall promptly transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 4.1 shall require the Servicer ITT to disclose to the Successor Servicer information of any kind which the Servicer ITT reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer ITT shall deem reasonably necessary to protect its interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 Servicerinterest. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(aSection 4.1(a) for a period of 10 five (5) Business Days after the applicable grace period or under subsection 10.01(bSection 4.1(b) or (c) for a period of 60 ten (10) Business DaysDays 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 ITT 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, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer ITT from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer ITT shall provide the Trustee, any Credit Enhancement Provider, the Transferor and the Holders of Investor Certificates Yamaha with an Officerofficer's Certificate 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. ITT shall immediately notify Yamaha in writing of any Servicer Default.
Appears in 1 contract
Sources: Servicing Agreement (Yamaha Motor Receivables Corp)
Servicer Defaults. If any one of the following events (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 (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee Issuer pursuant to Article IV Section 8 of the Indenture Supplement or to instruct the Indenture Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement on or before the date occurring Enhancement, in each case, within five (5) Business Days after the date of the receipt by the Servicer of written notice from the Indenture Trustee that such payment, transfer, deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement, any Indenture Supplement or the Indenture;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g)Agreement, (i) and (j)), any Indenture Supplement or the Indenture which has a material adverse effect on (i) the Investor Certificateholders Servicer’s ability to collect the Receivables or otherwise perform its obligations under this Agreement, any Indenture Supplement or the Indenture or (ii) the collectability or value of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) Receivables, and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), forty-five (i45) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 Indenture Trustee, or to the Servicer and the Indenture Trustee by Holders of Notes evidencing not less than 25% of the Outstanding Amount of any Series and such material adverse effect continues for such period; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 5.7;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Indenture Supplement or the Indenture or in any certificate delivered pursuant to this Agreement, any Indenture Supplement or the Indenture shall prove to have been incorrect when made, which has a material adverse effect on (i) the Servicer’s ability to collect the Receivables or otherwise perform its obligations under this Agreement, any Indenture Supplement or the Indenture or (ii) the collectability or value of the Receivables, and which continues to be incorrect in any material respect for a period of forty-five (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 Indenture Trustee or to the Servicer and the Indenture Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 5025% of the Certificateholders Ownership Interests Outstanding Amount of any Series adversely affected therebyand such material adverse effect continues 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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 (30) days) as debtor a petition to take advantage of proceeding under any applicable insolvency or reorganization statute, make an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoingobligations; then, so long as such Servicer Default shall not have been remedied, either the Indenture Trustee, or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating more than 5066-2/3% of the Aggregate Certificateholders Ownership InterestsOutstanding Amount, by notice then given in writing to the Servicer Servicer, (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "“Servicer Termination Notice"”), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such SeriesAgreement. After receipt by the Servicer of such Servicer Termination Notice, and on the date that a Successor Servicer 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 a Successor Servicer; 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 transfer of servicing rights and obligations. 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, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, 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 Account or any Series Account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable Insurance Proceeds applicable to the TrustIssuer. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 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 reasonably necessary to protect its interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under the Credit any Enhancement with respect to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(a) 7.1(a), for a cumulative period of 10 ten (10) Business Days Days, or under subsection 10.01(b7.1(b) or (c) ), for a cumulative period of 60 sixty (60) Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Indenture Trustee, any Credit Enhancement Provider, the Transferor Owner Trustee and the Holders of Investor Certificates Transferor, 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: Transfer and Servicing Agreement (Alliance Data Systems Corp)
Servicer Defaults. If any one Any of the following events (shall constitute a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer in its capacity as Servicer to make any payment, transfer or deposit (other than with respect required by any Transaction Document to any Credit Balances) be made by it 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 Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, transfer or deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement;which failure continues unremedied for three Business Days,
(b) failure on the part of the Servicer in its capacity as 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 other than those set forth in subsections 3.03(g), (i) and (j))Transaction Document, which failure has a material adverse effect on the Investor Certificateholders Holders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) Purchased Interest and which continues unremedied for a period of 60 30 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 any Investor Certificateholder or Purchaser or, subject to the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% prior written approval of the Certificateholders Ownership Interests of any Required Series adversely affected thereby; orHolders for each outstanding Series, Transferor,
(c) Servicer shall assign its duties under this Agreement, except as permitted by Sections 3.1(b) and 8.3,
(d) any Daily Report or Monthly Report shall fail to have been correct in any material respect when made or delivered, or shall not have been delivered when required under the terms hereof, and in either case such condition continues unremedied for a decree period of three Business Days; or order of a court any other representation, warranty or agency certification made by Servicer in any Transaction Document or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency certificate or other similar law for the appointment of a conservator document or receiver or liquidator instrument delivered pursuant to any Transaction Document shall fail to have been correct in any insolvencymaterial respect when made or delivered, readjustment which failure has a materially adverse effect on the Certificateholders or any Purchased Interest and which materially adverse effect continues unremedied for a period of debt15 Business Days after the date on which written notice of failure, marshalling of assets and liabilities or similar proceedings, or for requiring the winding-up or liquidation of its affairssame to be remedied, shall have been entered against the given to Servicer by Trustee or to Servicer and such decree Trustee by any Investor Certificateholder or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall consent Purchaser or, subject to the appointment prior written approval of a conservator or receiver or liquidator in the Required Series Holders for each outstanding Series, Transferor, or
(e) any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating Bankruptcy Event shall occur with respect to Servicer. In the Servicer or of or relating to all or substantially all of its property; or the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage event of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoing; thenServicer Default, so long as such Servicer Default shall not have been remedied, either Transferor shall, at the Trustee, direction of the Trustee or the Required Series Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Aggregate Certificateholders Ownership Interestsfor each outstanding Series, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of (but not less than all) the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables, the Related Transferred Assets and the proceeds thereof. Any determination that As soon as possible, and in any event within five Business Days, after an inaccuracy or other event, which with notice and/or Authorized Officer of Servicer has obtained knowledge of the passage occurrence of time would constitute a any Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates Servicer shall be made without regard to furnish Transferor, Trustee, each Agent and the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer Rating Agencies, and Trustee shall promptly furnish each Investor Certificateholder, notice of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 ServicerDefault. Notwithstanding the foregoing, a delay in or failure of in performance referred to in subsection 10.01(a(a) for a period of 10 ten Business Days after the applicable grace period, or under in subsection 10.01(b(b) or (cd) for a period of 60 30 Business DaysDays after the applicable grace period, shall not constitute a Servicer Default if such the delay or failure could not be have been prevented by the exercise of reasonable diligence by the Servicer and such the delay or failure was caused by an act of God or the public enemy, riots, acts of declared or undeclared war, public disorder, rebellion, riot or sabotageacts of terrorism, epidemics, flood, embargoes, weather, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages earthquakes 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 the Transaction Documents, and the Servicer shall provide the promptly give Transferor, Trustee, any Credit Enhancement Provider, the each Agent and Transferor and the Holders of Investor Certificates with an Officer's Certificate giving prompt notice notifying them of such its failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligationsdelay.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Big Flower Press Holdings Inc)
Servicer Defaults. If any one of the following events (a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement on or before the date occurring five two Business Days after the date such payment, transfer, deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this AgreementAgreement (PROVIDED, that with respect to payments to the Investor Certificateholders of Invested Amounts, such two Business Day grace period shall not apply);
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j))Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests Invested Amount of any Series materially adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure8.7;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 less than 50% of the Certificateholders Ownership Interests Invested Amount of any Series materially adversely affected therebythereby and continues to materially adversely affect such Investor Certificateholders for such period; or
(d) the Servicer shall consent to the appointment of a 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 supervi sory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoingobligations; then, so long as 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 Certificateholders Ownership InterestsInvested Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination NoticeTERMINATION NOTICE"), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and Agreement. The Servicer agrees that promptly after it receives such Termination Notice, the Servicer will at its own expense deliver to the Receivables. Any determination that an inaccuracy Trustee or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability bailee of any Credit Enhancement the Trustee a computer file or similar credit support device with respect to microfiche list containing a true and complete list of all Accounts, identified by account number and setting forth the Outstanding Balance of each Receivable as of the date of receipt of such SeriesTermination Notice. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, 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 Equalization Account, the Interest Funding Account or the Principal Account, and any Series Account, or which shall thereafter be received with respect to the Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustReceivables. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 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 reasonably necessary to protect its interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 In connection with any service transfer, all reasonable costs and expenses (including attorneys, fees) incurred in connection with transferring the foregoingrecords, a delay in or failure of performance referred correspondence and other documents with respect to in subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by Receivables and the other Trust Property to the Successor 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, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Amending this Agreement to reflect such succession as Successor Servicer pursuant to this Section 10.1 and the Servicer shall provide the Trustee, any Credit Enhancement Provider, the Transferor and the Holders of Investor 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.Section
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Apparel Retailers Inc)
Servicer Defaults. If any one of the following events (a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (other than with respect to any Credit Balances) or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Indenture Trustee to make any required drawingsuch payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing 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;
(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 (other than those set forth in subsections 3.03(g), (i) and (j)), which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) an Adverse Effect and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by Holders of Notes evidencing not less than 10% of the aggregate unpaid principal amount of all 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 or delegate its duties under this Agreement, except as permitted by Sections 5.02 and 5.07;
(c) any representation, warranty or certification 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 an Adverse Effect on the rights of the Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which 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 Owner Trustee or the Indenture Trustee, or to the Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 5010% of the Certificateholders Ownership Interests aggregate unpaid principal amount of all 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 adversely affected therebyto which such representation, warranty or certification relates); or
(d) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law for Servicer shall consent to the appointment of a conservator bankruptcy trustee, conservator, receiver, liquidator or receiver or liquidator similar official in any bankruptcy proceeding or 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 and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or 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, voluntary liquidation 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, conservator, receiver, liquidator or similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its propertyaffairs, shall have been entered against the Servicer; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action obligations; then, in furtherance the event of any of the foregoing; thenServicer Default, so long as such the Servicer Default shall not have been remedied, either any of the Indenture Trustee, any Controlling Entity or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating more than 50% of the Aggregate Certificateholders Ownership Interestsaggregate unpaid principal amount of all Outstanding Notes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "Termination NoticeTERMINATION NOTICE"), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement Agreement; 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 subsection 7.02(c) to act as a Successor Servicer and in and receives an Officer's Certificate of the Servicer to the Receivableseffect 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 Transferor which would permit the Transferor at its option to acquire the Notes on the Distribution Date in the next calendar month. Any determination that an inaccuracy or other event, which with notice and/or The price for the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates Notes shall be made without regard equal to the availability sum of any Credit Enhancement or similar credit support device the amounts specified therefor with respect to each Outstanding Series in the related Indenture Supplement. The Transferor shall notify the Indenture Trustee prior to the Record Date for the Distribution Date of the acquisition if it is exercising such Seriesright of first refusal. If the Transferor exercises such right of first refusal, the Transferor shall deposit the price into the Collection Account not later than 1:00 p.m., New York City time, on such Distribution Date in immediately available funds. The price shall be allocated and distributed to Noteholders in accordance with the terms of the Indenture and each Indenture Supplement. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been is 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 ServicerServicer (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 transfer of servicing rights and obligationsService 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 includinghereunder, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, including, without limitation, 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 Principal Account, and any Series Account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustServicer. The Servicer shall promptly within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 interests. Subject The Servicer shall pay to the immediately preceding sentence, the Servicer agrees to grant to the Indenture Trustee and any Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned reasonable transition expenses incurred by such person and the Servicer and which is used by the Servicer agents in connection with the servicing any transition of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 ServicerServicing. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(aparagraph (a) above for a period of 10 Business Days after the applicable grace period or under subsection 10.01(bparagraph (b) or (c) above for a period of 60 Business DaysDays 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, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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, any Credit Enhancement ProviderOwner Trustee, the each Transferor and the Holders of Investor Certificates any Series Enhancer 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: Transfer and Servicing Agreement (Household Consumer Loan Corp 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 (other than with respect to any Credit Balances) or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawingsuch payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this AgreementAgreement 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 (other than those set forth in subsections 3.03(g), (i) and (j)), or any Supplement which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of whether funds are then available pursuant to any Credit Enhancement or similar credit support deviceSeries Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 5010% of the Certificateholders Ownership Interests 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 adversely affected thereby and continues to materially adversely affect which such Investor Certificateholders for such periodfailure relates); or the Servicer shall assign or delegate or assign its duties under this Agreement, except as permitted by Section Sections 8.02 or and 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 of any Series (which determination shall be made without regard to the availability of whether funds are then available pursuant to any Credit Enhancement or similar credit support deviceSeries Enhancement) and which material adverse effect continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failurethereof, 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 5010% of the Certificateholders Ownership Interests 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 adversely affected therebyto 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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action obligations; then, in furtherance the event of any of the foregoing; thenServicer Default, so long as such 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 Certificateholders Ownership Interestsaggregate 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 of but not less than all the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the ReceivablesReceivables 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. Any determination that an inaccuracy or other event, which with notice and/or The purchase price for the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates Certificateholders’ Interest shall be made without regard equal to the availability sum of any Credit Enhancement or similar credit support device 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 Seriesright 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 such a Termination Notice, and on the date that a Successor Servicer shall have been 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 ServicerServicer (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 transfer of servicing rights and obligationsService 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 includinghereunder, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, including, without limitation, 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 Principal Account, and any Series Account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustServicer. The Servicer shall promptly within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 Servicerinterest. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(aparagraph (a) above for a period of 10 Business Days after the applicable grace period or under subsection 10.01(bparagraph (b) or (c) above for a period of 60 Business DaysDays 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, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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 Credit Enhancement Provider, the Transferor Series Enhancer and the Holders of Investor Certificates Certificateholders 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
Servicer Defaults. If any one Any of the following events (shall constitute a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer (in its capacity as Servicer) to make any payment, transfer or deposit (required by this Indenture or any of the other than with respect Transaction Document to any Credit Balances) be made by it or to give instructions or to give notice to the Trustee pursuant to Article IV Trustee, the Administrative Agent, or to instruct the Trustee Paying Agent (if other than the Administrative Agent) to make any required drawingsuch payment, withdrawaltransfer or deposit, or payment under any Credit Enhancement which failure continues unremedied (A) in the case of payments of interest on or before the date occurring Notes, for five Business Days and (B) in the case of all payments not included in CLAUSE (A) above, for seven Business Days after the date on which an Authorized Officer of the Servicer has actual knowledge of such payment, transfer, deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreementfailure;
(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 other than those set forth in subsections 3.03(g), (i) and (j))Transaction Document, which failure has a material adverse effect on the Investor Certificateholders Noteholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) Notes and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues to be incorrect in any material respect 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 TrusteeTrustee or the Administrative Agent, or to the Servicer Servicer, the Trustee, and the Trustee Administrative Agent by any Noteholder;
(c) the Servicer shall assign its duties under this Indenture, except for delegations to Sub-Servicers contemplated under the Purchase Agreement or as permitted by SECTIONS 3.01(c) and 8.03;
(d) any representation, warranty or certification made by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% Servicer hereunder or under any of the Certificateholders Ownership Interests other Transaction Document or in any certificate or other document or instrument delivered pursuant to this Indenture or any of the other Transaction Document shall prove to have been incorrect in any material respect when made or delivered and which has a material adverse effect on the Noteholders of any Series adversely affected therebyof Notes which material adverse effect continues unremedied for a period of 30 days after the date on which written notice of such circumstance, requiring the same to be remedied, shall have been given to the Servicer by the Trustee or the Administrative Agent, or to the Servicer, the Trustee, and the Administrative Agent by any Noteholder; or
(de) a decree or order any Event of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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, Bankruptcy 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 consent occur with respect to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets Servicer. Upon the occurrence and liabilities, voluntary liquidation or similar proceedings of or relating to during the Servicer or of or relating to all or substantially all of its property; or the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage continuance of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoing; then, so long as such Servicer Default shall not have been remediedor any Event of Default, either the Trustee, or at the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% direction of the Aggregate Certificateholders Ownership InterestsMajority Noteholders, shall, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination NoticeTERMINATION NOTICE"), may terminate all of (but not less than all) the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement Indenture and in and to the Receivables, the Related Transferred Assets and the proceeds thereof. Any determination that As soon as possible, and in any event within five Business Days, after an inaccuracy or other event, which with notice and/or Authorized Officer of the passage Servicer has obtained knowledge of time would constitute a the occurrence of any Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject furnish notice thereof to the immediately preceding sentenceTrustee, the Servicer agrees to grant to the Successor Servicer an exclusiveAdministrative Agent, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; providedApplicable Rating Agencies, however, that and the Issuer and the Administrative Agent shall promptly upon receipt of such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under the Credit Enhancement with respect notice furnish notice thereof to any Series to the Successor Servicereach Noteholder. Notwithstanding the foregoing, a delay in or failure of in performance referred to in subsection 10.01(aSUBSECTION (a) above for a period of 10 Business Days after the applicable grace period, or under subsection 10.01(bin SUBSECTION (b) or (cd) above for a period of 60 30 Business DaysDays after the applicable grace period, shall not (unless such delay or failure continues after such 10 or 30 Business Day period, as applicable) 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, riots, acts of declared or undeclared war, public disorder, rebellion, riot or sabotageacts of terrorism, epidemics, flood, embargoes, weather, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages earthquakes 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 hereof and of this Agreement the other Transaction Documents, and the Servicer shall provide promptly give the Trustee, any Credit Enhancement Providerthe Administrative Agent, the Transferor and the Holders of Investor Certificates with Issuer an Officer's Certificate giving prompt notice notifying them 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: Master Trust Indenture and Security Agreement (Stone Container 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 (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV the terms of this Agreement or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement Supplement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this AgreementAgreement 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 (other than those set forth in subsections 3.03(g), (i) and (j)), 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 the availability of any Credit Enhancement or similar credit support device) Class and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 more than 50% of the Certificateholders Ownership Interests Aggregate Investor Amount (or, with respect to any such failure that does not relate to all Series, 50% of any the aggregate Investor Amount of all Series adversely affected thereby and continues to materially adversely affect which such Investor Certificateholders for such periodfailure relates); or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section Sections 8.02 or 8.07; provided, however, that failure on the part a Responsible Officer of the Servicer duly to observe or perform in any respect any covenants or agreements Trustee has actual knowledge of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) such delegation and which such delegation continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 unremedied for 15 days after the date (following such removal) on which written notice of such continuing material adverse effect thereof, requiring the same to 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 Undivided Interests aggregating not less more than 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failureAggregate Investor Amount;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) Class 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 less more than 50% of the Certificateholders Ownership Interests Aggregate Investor Amount (or, with respect to any such representation, warranty or certification that does not relate to all Series, 50% of any the aggregate Investor Amount of all Series adversely affected therebyto 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, 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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action obligations; then, in furtherance the event of any of the foregoing; thenServicer Default, so long as such the 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 Certificateholders Ownership InterestsInvestor Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the ReceivablesReceivables 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 subsection 10.02(c) to act as a Successor Servicer and receives an Officer's Certificate of the 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 offer the Transferor the right at its option to purchase the Certificateholders' Interest on the Distribution Date next succeeding 60 days after the receipt by the Servicer of a Termination Notice. Any determination that an inaccuracy or other event, which with notice and/or The purchase price for the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates Certificateholders' Interest shall be made without regard equal to the availability sum of any Credit Enhancement or similar credit support device the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Transferor shall notify the Trustee in writing prior to the Record Date for the Distribution Date of the purchase if it is exercising such Seriesoption. If the Transferor exercises such option, the 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 Transferor, 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 such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer of servicing rights and obligationsrights. 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 Trust Assets Receivables provided for under this Agreement, 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 Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustInsurance Proceeds. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 any delay in or failure of performance referred to in under subsection 10.01(a) for a period of 10 5 Business Days or under subsection subsections 10.01(b) or (c) for a period of 60 Business Daysdays (in addition to any period provided in subsections 10.01(a), (b) or (c)) 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, terrorism, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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, any Credit Enhancement Providereach Rating Agency, the Transferor and the Holders of the Transferor Certificates and the Investor Certificates Certificateholders 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 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") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV the terms of this Agreement or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement Supplement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this AgreementAgreement 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 (other than those set forth in subsections 3.03(g), (i) and (j)), 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 the availability of whether funds are then available pursuant to any Credit Enhancement or similar credit support deviceEnhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 5025% of the Certificateholders Ownership Interests aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 25% of the aggregate unpaid principal amount of all Series adversely affected thereby and continues to materially adversely affect which such Investor Certificateholders for such periodfailure relates); or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; providedSections 8.2 and 8.7, however, that failure on the part a Responsible Officer of the Servicer duly to observe or perform in any respect any covenants or agreements Trustee has actual knowledge of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) such delegation and which such delegation continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 unremedied for 15 days after the date (following such removal) on which written notice of such continuing material adverse effect thereof, requiring the same to 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 Undivided Interests aggregating not less than 5025% of the Certificateholders Ownership Interests aggregate unpaid principal amount of any Series adversely affected thereby, remedied such failureall Investor Certificates;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 of any Series or Class (which determination shall be made without regard to the availability of whether funds are then available pursuant to any Credit Enhancement or similar credit support deviceEnhancement) 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 less than 5025% of the Certificateholders Ownership Interests 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, 25% of the aggregate unpaid principal amount of all Series adversely affected therebyto which such representation, warranty or certification relates); or
(d) the Servicer shall fail 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 present Debtor Relief Law, or future federal or state bankruptcy, insolvency or other similar law 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 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 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 receiver other similar official of such Person or liquidator in for any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all substantial part of its property; , or the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an general assignment for the benefit of its creditors creditors; or voluntarily suspend payment such Person or any subsidiary of its obligations or take such Person shall have taken any corporate action in furtherance of any of the foregoingforegoing actions; then, in the event of any Servicer Default, so long as such the 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 Certificateholders Ownership Interestsaggregate unpaid principal amount of all Investor Certificates, by notice then given in writing to the Servicer (and to the Trustee and any Enhancement Provider entitled thereto pursuant to the relevant Supplement if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting Servicer, as Servicer) , under this Agreement and in and to the ReceivablesReceivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee is unable to obtain any bids from Eligible Servicers in accordance with subsection 10.2(c) to act as a Successor Servicer and receives an Officer's Certificate of the 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 offer the Transferor the right at 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. Any determination that an inaccuracy or other event, which with notice and/or The purchase price for the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates Certificateholders' Interest shall be made without regard equal to the availability sum of any Credit Enhancement or similar credit support device the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Transferor shall notify the Trustee prior to the Record Date for the related Distribution Date of the purchase if it is exercising such Seriesoption. If it exercises such option, the 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 Transferor, 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 such Termination Notice, and on the date that a Successor Servicer 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 ServicerServicer (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 transfer of servicing rights and obligationsrights. 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 including, without limitation, the transfer to such the Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, 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 Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustInsurance Proceeds. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 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 reasonably necessary appropriate to protect its interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 any delay in or failure of performance referred to in under subsection 10.01(a10.1(a) for a period of 10 five Business Days or under subsection 10.01(b10.1(b) or (c) for a period of 60 Business Daysdays (in addition to any period provided in subsection 10.1(a), (b) or (c)) 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, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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, each Rating Agency, any Credit Enhancement ProviderProvider entitled thereto pursuant to the relevant Supplement, the Holder of the Transferor Certificate and the Holders of Investor Certificates Certificateholders 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 1 contract
Sources: Pooling and Servicing Agreement (Target Receivables Corp)
Servicer Defaults. If any one Upon the occurrence 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 (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j)), which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 less than 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby; or
(d) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoing; then, so long as such Servicer Default shall not have been remediedremedied or waived, either the Trustee, or at the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% direction of the Aggregate Certificateholders Ownership InterestsControl Party, by notice then given in writing to the Master Servicer (and to the Trustee if given by the Investor Certificateholders) (such notice being a "“Termination Notice"”), may shall terminate all of the rights and obligations of the Master Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) servicer under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device Supplement with respect to which such Seriesnotice was so given. The Trustee shall not be deemed to have knowledge of a Servicer Default with respect to any Series until a Responsible Officer has received written notice thereof. After receipt by the Master Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.02, all authority and power of the Master Servicer under this Agreement and the Supplement shall pass to and be vested in the such Successor ServicerServicer (a “Service Transfer”); and, without limitation, the Trustee is hereby authorized authorized, empowered and empowered instructed (upon the failure of the Master Servicer to cooperate) ), at the direction of the Control Party, to execute and deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Master 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 transfer of servicing rights and obligationsService Transfer. The Master Servicer hereby agrees to cooperate cooperate, at its expense, with the Trustee Trustee, such Successor Servicer and any designated subcontractor of such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Master Servicer to conduct servicing hereunder and under the Supplement, including, without limitation, the transfer to such Successor Servicer or such subcontractor of all authority of the Master Servicer to service the Trust Assets Receivables as provided for under this AgreementAgreement and the Supplement, including, without limitation, including all authority over all Collections which shall on the date of transfer such Service Transfer be held by the Master Servicer for depositdeposit to any Settlement Lock-Box Account, the Master Collection Account, the Series Collection Account, the Series Payment Account, the Series Reserve Account, the Trustee’s Account or the Issuer’s Account, for payment to any Claimant in respect of any Split Payment, or which have been deposited by the ServicerMaster Servicer to any Settlement Lock-Box Account, in the Master Collection Account, the Finance Charge Series Collection Account, the Principal Series Payment Account, and the Series Reserve Account or any Series Accountother account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in (ii) assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trustany designated subcontractor of such Successor Servicer. The Master Servicer shall, at its expense, as soon as practicable, and in any event within three Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and disks), which evidence the affected Series Receivables and the other Series Trust Assets, and which are necessary or desirable to collect the affected Series Receivables, and shall promptly transfer its electronic records or electronic copies thereof relating to make the Trust Assets same available to the Successor Servicer or the Trustee or its designee at a place selected by the Successor Servicer or the Trustee or its designee and in such electronic form as the Successor Servicer or the Trustee or its designee 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 and Split Payments 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 Trust Assets 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 instruments 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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 Trustee or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor 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 obligationsdesignee.
Appears in 1 contract
Servicer Defaults. If any one (a) Definition. Any of the following events (will constitute a "Servicer Default") shall occur and be continuing" pursuant to this Agreement:
(ai) any failure by the Servicer to make any payment, transfer or deposit (other than with respect to or deliver any Credit Balances) Monthly Statement or to give instructions or notice to Annual Statement which continues beyond the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement on or before the date occurring five second Business Days Day after the date upon which such payment, transfer, deposit, withdrawal deposit or drawing or such instruction or notice delivery is required to be made or given, as the case may be, under the terms of pursuant to this Agreement;
(bii) 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 pursuant to this Agreement (other than those set forth in subsections 3.03(g)Agreement, (i) if such failure materially and (j)), which has a material adverse effect on adversely affects the Investor Certificateholders rights of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) Lender and which continues unremedied for a period of 60 thirty days after the earlier of (a) the date on which written notice of such failure, stating demand that such notice failure be remedied is a "Notice of Servicer Default" hereunder and requiring the same to be remedied, shall have been given to the Servicer by the Trustee, Lender or to (b) the date on which a Responsible Officer of the Servicer and the Trustee by the Holders becomes aware of Investor Certificates evidencing Undivided Interests aggregating not less than 50% such failure;
(iii) any delegation of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues Servicer's duties pursuant to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by pursuant to Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure6.7;
(civ) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer Report) delivered pursuant to this Agreement or any Supplement shall prove proves to have been incorrect in any material respect when made, which made and such incorrect statement has a material and adverse effect on the Investor Certificateholders rights of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) Lender and which continues to be incorrect in any material respect for a period of 60 thirty days after the earlier of (a) the date on which written notice of demand that such failure, requiring the same to incorrect statement be remedied, shall have been remedied is given to the Servicer by the Trustee, Lender or to (b) the date on which a Responsible Officer of the Servicer and the Trustee by the Holders becomes aware of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests of any Series adversely affected therebysuch incorrect statement; or
(dA) the Servicer consents to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceeding of or relating to the Servicer or all or substantially all of its Property, (B) a decree or order of a court or agency or supervisory authority having proper jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedingsproceeding, or for the winding-up or liquidation of its the Servicer's 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 90 days; , or (C) 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or the Servicer shall admit admits in writing its inability to pay pay, or fails to pay, its debts generally as they become due, file files a petition or commences any case or proceeding to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make an makes any assignment for the benefit of its creditors or voluntarily suspend suspends payment of its obligations or take any corporate action in furtherance of any of the foregoing; then, so long as 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 Certificateholders Ownership Interests, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor 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: Servicing Agreement (Trans Leasing International Inc)
Servicer Defaults. If any one of the following events (subject to the last paragraph of this Section 10.01, a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, withdrawal or payment under any Credit Enhancement on or before the later of (i) the date occurring five 10 Business Days after the date such payment, transfer, deposit, withdrawal or 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 (ii) three Business Days after written notice of such failure shall have been given to the Servicer;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j))Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 5025% of the Certificateholders Ownership Interests unpaid Initial Investor Interest of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 less than 5025% of the Certificateholders Ownership Interests unpaid Initial Investor Interest of any Series adversely affected therebythereby and continues to materially adversely affect such 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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoingobligations; then, so long as 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 Certificateholders Ownership Interestsaggregate unpaid Initial Investor Interests of all outstanding Series, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations (other than unsatisfied obligations for acts or omissions during its tenure as Servicer) of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such SeriesAgreement. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, 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, Account or the Principal Account, Account and any Series Account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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. The Servicer being terminated shall bear all costs of a Service Transfer, including but not limited to those of the 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 delay in or failure of performance referred to in subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Daysdays, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor 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 Bankcard 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 (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, ---------- withdrawal, or payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit, deposit withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j))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 available to the availability Certificateholders of any Credit Enhancement or similar credit support deviceSeries under any applicable Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by (i) the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests Investor Interest of any Series adversely affected thereby or (ii) to the extent provided in any Supplement by the related Enhancement Provider, and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.078.7; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;-----------
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are available to the availability Certificateholders of any Credit Enhancement or similar credit support deviceSeries under any applicable Enhancement) 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 (i) the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests Investor Interest of any Series adversely affected therebythereby or (ii) to the extent provided in any Supplement by the related Enhancement Provider, and continues to materially adversely affect such 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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoingobligations; then, so long as 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 Certificateholders Ownership InterestsInvestor Interest, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the ------------------ rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such SeriesAgreement. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, 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 Excess Funding Account, and any Series Account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries and Interchange allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 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 reasonably necessary to protect its interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferabletransferrable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans Accounts and the related Receivables; provided, however, that such software shall be used by the -------- ------- Successor Servicer solely for the purposes of servicing the Trust AssetsAccounts and the Receivables. 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 subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor 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 (Peoples Bank 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 (other than with respect to any Credit Balances) or to give instructions or to give notice to the Trustee pursuant to Article IV or to instruct the Indenture Trustee to make any required drawingsuch payment, withdrawal, transfer or payment under any Credit Enhancement deposit on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal transfer or drawing deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this AgreementAgreement 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 (other than those set forth in subsections 3.03(g), (i) and (j)), which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) an Adverse Effect and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by Holders of Notes evidencing not less than 10% of the aggregate unpaid principal amount of all 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 or delegate its duties under this Agreement, except as permitted by Sections 5.02 and 5.07;
(c) any representation, warranty or certification 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 an Adverse Effect on the rights of the Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which 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 Owner Trustee or the Indenture Trustee, or to the Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 5010% of the Certificateholders Ownership Interests aggregate unpaid principal amount of all 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 adversely affected therebyto 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 in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 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 consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; 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 an any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action obligations; Then, in furtherance the event of any of the foregoing; thenServicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating more than 50% of the Aggregate Certificateholders Ownership Interestsaggregate unpaid principal amount of all Notes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "Termination ----------- Notice"), may terminate all of but not less than all the rights and obligations of ------ the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement Agreement; 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 subsection 7.02(c) to act as a Successor Servicer and in and receives an Officer's Certificate of the Servicer to the Receivableseffect 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 Transferor which would permit the Transferor at its option to acquire the Noteholders' Collateral on the Distribution Date in the next calendar month. Any determination that an inaccuracy or other event, which with notice and/or The price for the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates Noteholders' Collateral shall be made without regard equal to the availability sum of any Credit Enhancement or similar credit support device the amounts specified therefor with respect to each outstanding Series in the related Indenture Supplement. The Transferor shall notify the Indenture Trustee prior to the Record Date for the Distribution Date of the acquisition if it is exercising such Seriesright of first refusal. If the Transferor exercises such right of first refusal, the Transferor shall deposit the price into the Collection Account not later than 1:00 P.M., New York City time, on such Distribution Date in immediately available funds. The price shall be allocated and distributed to Noteholders in accordance with the terms of the Indenture and each Indenture Supplement. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been is 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 ServicerServicer (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 transfer of servicing rights and obligationsService 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 includinghereunder, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, including, without limitation, 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 Principal Account, and any Series Account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustServicer. The Servicer shall promptly within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(aparagraph (a) above for a period of 10 Business Days after the applicable grace period or under subsection 10.01(bparagraph (b) or (c) above for a period of 60 Business DaysDays 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, public disorder, rebellion, riot rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages 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, any Credit Enhancement ProviderOwner Trustee, the each Transferor and the Holders of Investor Certificates any Series Enhancer 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: Transfer and Servicing Agreement (Household Credit Card Master Note Trust I)
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 (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV Section 4.5 or to instruct the Trustee to make any required drawing, withdrawal, or payment a drawing under any Letter of Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal deposit or 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 or any 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 (other than those set forth in subsections 3.03(g), (i) and (j)), or any Supplement which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and Certificateholders, which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 5025% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Aggregate Investor Certificateholders for such periodAmount; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.078.7; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;or
(c) any representation, warranty or certification made by the Servicer in this Agreement or Agreement, any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor rights of the Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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 less than 5025% of the Certificateholders Ownership Interests Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of any Series adversely affected therebyServicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; or
(d) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency(a) become insolvent, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or the Servicer shall admit in writing its inability (b) fail to pay its debts generally as they become due, file a petition to take advantage (c) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any applicable insolvency Debtor Relief Law, or reorganization statute(d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, make an assignment for other than as a creditor or claimant, and, in the benefit of event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoingfiling; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more not less than 5051% of the Aggregate Certificateholders Ownership InterestsInvestor Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or Receivables and the proceeds thereof (other eventthan its rights and interest, which with notice and/or if any, as Holder of the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such SeriesExchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer of servicing rights and obligationsrights. 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, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, 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 AccountAccount or, the Principal Account, and any Series Account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustInsurance Proceeds. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 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 reasonably necessary to protect its interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assetsinterest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations obligations, if any, under the Letter of Credit Enhancement with respect to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor 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 (JCP Receivables Inc)
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 (other than with respect to the Certificate Distribution Account any Credit Balances) required payment or to give instructions or notice to direct the Trustee pursuant to Article IV or to instruct the Indenture Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j))distributions therefrom, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which failure 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, stating that such notice is a "Notice of Servicer Default" hereunder and 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 Undivided Interests aggregating not less than 5025% of the Certificateholders Ownership Interests Outstanding Amount of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Notes;
(b) failure by the Servicer shall delegate (or assign its duties under this Agreement, except so long as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of 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 subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer Report) 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 Investor rights of Certificateholders of any Series or Noteholders and (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support deviceii) and which continues to be incorrect in any material respect continue unremedied for a period of 60 90 days after the date on which written notice of 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 Undivided Interests aggregating not less than 5025% of the Certificateholders Ownership Interests Outstanding Amount of any Series adversely affected therebythe Notes; or
(dc) a decree or order the occurrence of a court or agency or supervisory authority having jurisdiction in an Insolvency Event with respect to the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; Seller or 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, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or the Servicer shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoingServicer; then, and in each and every case, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating more not less than 5025% of the Aggregate Certificateholders Ownership Outstanding Amount of the 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 to the Indenture Trustee and the Owner Trustee if given by the Investor CertificateholdersNoteholders) (a "Termination Notice"), may terminate all of 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 as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the ReceivablesAgreement. Any determination that an inaccuracy On or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer of such Termination Notice, and on after the date that a Successor Servicer shall have been 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 ServicerServicer 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 notice of termination, whether to complete the transfer and endorsement of servicing rights the Receivables and obligationsrelated 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 hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, including, without limitation, including the transfer to the Successor Servicer for administration by it of all authority over all Collections which cash amounts that shall on at 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 the Finance Charge Account, the Principal Account, and any Series Account, Certificate Distribution Account or which shall thereafter be received with respect to the Trust Assets, Receivables and all Payments Ahead that shall at that time by held by the predecessor Servicer. All reasonable costs and expenses (including servicer conversion costs and attorneys’ fees) incurred in assisting connection with transferring the Receivable Files to the Successor Servicer and in enforcing all rights amending this Agreement to Recoveries allocable reflect such succession as Servicer pursuant to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned paid by the predecessor Servicer upon presentation of reasonable documentation of such costs and which is used by the Servicer expenses. Any costs or expenses incurred in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, shall not constitute 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 ProviderDefault, the Transferor and the Holders of Investor Certificates with an Officer's Certificate giving prompt Indenture Trustee shall give notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so thereof to perform its obligationseach Rating Agency.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Honda Auto Receivables 2004-3 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 (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or drawing 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
(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 (other than those set forth in subsections 3.03(g), (i) and (j)), which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and Certificateholders, which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and failure requiring the same to be remedied, 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 50% of the Certificateholders Ownership Interests Investor Amount of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign Servicer's delegation of its duties under this Agreement, Agreement except as permitted by Section 8.02 or 8.078.7; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;or
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) 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, failure requiring the same to be remedied, 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 50% of the Certificateholders Ownership Interests Investor Amount of any Series adversely affected therebythereby and continues to materially adversely affect such Investor Certificateholders for such period, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of the Servicer, if the Servicer shall fail to proceed promptly to cure the same and prosecute the curing of such failure with diligence and continuity; or
(d) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency(a) become insolvent, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or the Servicer shall admit in writing its inability (b) fail to pay its debts generally as they become due, file a petition to take advantage (c) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any applicable insolvency Debtor Relief Law, or reorganization statute(d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, make an assignment for other than as a creditor or claimant, and, in the benefit of event such proceeding is involuntary, the petition instituting same is not dismissed within 60 days after its creditors or voluntarily suspend payment of its obligations or take any corporate action in furtherance of any of the foregoingfiling; then, so long as 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 Certificateholders Ownership InterestsInvestor Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or Receivables and the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Seriesproceeds thereof. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer of servicing rights and obligationsrights. 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 includinghereunder, including without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets Receivables provided for under this Agreement, 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 any Collection Account, the Finance Charge Account, the Principal Account, and any Account or Series Account, or which shall thereafter be received with respect to the Trust AssetsReceivables, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the TrustInsurance Proceeds. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Trust Assets 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 Trust Assets 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 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 reasonably necessary to protect its interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assetsinterest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under the Credit obligations, if any, in respect of any Enhancement with respect to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, 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, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, 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 Transferor and the Holders of Investor 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 (Spiegel Credit Corp Iii)
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 (other than with respect to any Credit Balances) or to give instructions advice or notice to the Receivables Trustee pursuant to Article IV an agreed schedule of collections and allocations or to instruct advise the Receivables Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement pursuant to the Transaction Documents on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or drawing or such instruction advice or notice is required to be made or given, as the case may be, under the terms of this AgreementDeed or any Transaction Document;
(b) failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Agreement (other than those set forth in subsections 3.03(g), (i) and (j)), Deed or any Transaction Document which has a material adverse effect Material Adverse Effect on the interests of the Investor Certificateholders Beneficiaries of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) Outstanding Issuance and which failure, if capable of remedy, continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.02 or 8.07; provided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect 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 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer 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 Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues to be incorrect in any material respect for a period of 60 days more 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 Receivables Trustee, or to the Servicer and the Receivables Trustee by the Holders of an Investor Certificates evidencing Undivided Interests aggregating not less than 50% Beneficiary or Investor Beneficiaries holding 50 per cent. or more of the Certificateholders Ownership Investor Interests in respect of any Series Outstanding Issuance adversely affected thereby; orthereby and continues to have a Material Adverse Effect on the interests of such Investor Beneficiary in respect of such Outstanding Issuance for such period;
(c) delegation by the Servicer of its duties under this Deed to any other entity, except as permitted by Clause 10.6;
(d) a decree any relevant representation, warranty or order of a court certification made by the Servicer in this Deed or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law 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 certificate delivered pursuant hereto proves to have been entered against incorrect when made, which has a Material Adverse Effect on the Servicer interests of the Investor Beneficiaries in respect of any Outstanding Issuance and such decree or order shall have remained continues to be incorrect in force undischarged or unstayed any material respect for a period of 60 days; days or more 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 Receivables Trustee or to the Servicer and the Receivables Trustee by an Investor Beneficiary or Investor Beneficiaries holding 50 per cent. or more of the Aggregate Investor Interest in respect of any Outstanding Issuance adversely affected thereby and continues to have a Material Adverse Effect on the interests of an Investor Beneficiary in respect of any Outstanding Issuance affected for such period;
(e) the 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 liabilitiesadministrative receiver, voluntary liquidation liquidator, trustee or similar proceedings officer of or relating to the Servicer or of it or relating to all or substantially all of its propertyrevenues and assets or proceedings are initiated against the Transferor under any applicable liquidation, insolvency, composition, re- organisation or similar laws for its winding-up, dissolution, administration or re- organisation (except for a solvent re-organisation) and such proceedings are not discharged within 60 days or a receiver, administrator, administrative receiver, liquidator, trustee or similar officer of it or relating to all or substantially all of its revenues and assets is legally and validly appointed and such appointment is not discharged within 14 days; or or
(f) a director of the Servicer shall admit in writing its inability that the Servicer is unable to pay its debts as they become due, file fall due within the meaning of Section 123(1) of the Insolvency Act 1986 or the Servicer makes a petition to take advantage of any applicable insolvency or reorganization statute, make an general assignment for the benefit of or a composition with its creditors or voluntarily suspend suspends payment of its obligations with a view to the general readjustment or take any corporate action in furtherance rescheduling of any of the foregoing; thenits indebtedness, then so long as such Servicer Default shall not have been remedied, either the Receivables Trustee, if directed by the Investor Beneficiaries, or the Holders of Investor Certificates evidencing Undivided Interests aggregating Beneficiaries representing in aggregate more than 50662/3% of the Combined Aggregate Certificateholders Ownership InterestsInvestor Interest, in each case by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Servicer Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables. Any determination that an inaccuracy or other event, which with notice and/or the passage of time would constitute a Servicer Default, would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer 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; 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 transfer 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 including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Trust Assets provided for under this Agreement, 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 Trust Assets, and in assisting the Successor Servicer and in enforcing all rights to Recoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the 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 Trust Assets 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 interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. 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 ServicerDeed. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(aparagraph (a) above for a period of 10 London Business Days or under subsection 10.01(bparagraph (b), (c) or (cd) for a period of 60 London Business Days, Days (in addition to any period provided in (a) to (d) above) 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 enemyGod, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages cuts or similar causes. The preceding sentence shall not relieve the Servicer from using its best reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement Deed and any Transaction Document and the Servicer shall provide the Trustee, Receivables Trustee with an Officer's Certificate (copied to any Credit Enhancement Provider, the Transferor and the Holders of each Investor Certificates with an Officer's Certificate Beneficiary) 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.
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