Acceptance of Appointment and Other Matters Relating to Servicer. (a) The Servicer will service, manage, administer and make collections on the Receivables, all in accordance with its servicing procedures for servicing dealer floorplan receivables comparable to the Receivables that the Servicer services for its own account or others and in accordance with the Floorplan Financing Guidelines. The Servicer has full power and authority, acting alone or through any party properly designated by it under this Agreement, to do any and all things in connection with such servicing and administration that it may deem necessary or desirable. Without limiting the generality of the foregoing, the Servicer is authorized and empowered to do any of the following: (i) to make deposits into the Collection Account and to instruct the Indenture Trustee or the Owner Trustee to make withdrawals and payments from the Collection Account, the Excess Funding Account and any Series Account as set forth in this Agreement, the Indenture or any Indenture Supplement and, in connection with the foregoing, perform all calculations (including any allocations of funds and other amounts) required to be performed by the Servicer as provided in this Agreement, the Indenture or any Indenture Supplement; (ii) to execute and deliver, on behalf of the Issuer, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the Receivables, after the delinquency of any Receivable and to the extent permitted under and in compliance with Applicable Law, to commence enforcement proceedings with respect to such Receivables; (iii) to make any filings, reports, notices, applications, registrations with, and seek any consents or authorizations from, the Securities and Exchange Commission and any state securities authority on behalf of the Issuer as may be necessary or advisable to comply with any federal or state securities laws or reporting requirement; and (iv) to delegate certain of its servicing, collection, enforcement and administrative duties under this Agreement with respect to the Accounts and the Receivables to any Person; provided, however, that no delegation will relieve the Servicer of its liability and responsibility with respect to such delegated duties. The Indenture Trustee and the Owner Trustee will furnish the Servicer with any powers of attorney and other documents reasonably necessary or appropriate to enable the Servicer to carry out its duties under this Agreement. (b) If the Depositor is unable for any reason to sell Receivables to the Issuer in accordance with the provisions of this Agreement, then the Servicer agrees (i) to give prompt notice of such inability to the Indenture Trustee, the Owner Trustee and each Rating Agency and (ii) after the occurrence of such event, to allocate Collections received in respect of each related Account in accordance with Section 2.5(b). (c) The Servicer will not, and any Successor Servicer will not, be obligated to use servicing procedures, offices, employees or accounts for servicing the Receivables different from the procedures, offices, employees and accounts used by it in connection with servicing other floorplan receivables. (d) The Servicer will comply with and perform its servicing obligations with respect to the Accounts and Receivables in accordance with the related Floorplan Financing Agreements and the Floorplan Financing Guidelines, except insofar as any failure to so comply or perform would not materially and adversely affect the rights of the Issuer or the Noteholders. Subject to compliance with Applicable Law, the Servicer may change the terms and provisions of any of the Floorplan Financing Agreements or the Floorplan Financing Guidelines in any respect (including the calculation of the amount or the timing of charge offs and the rate of interest charged on the Receivables), only if: (i) as a result of such change, in the reasonable judgment of the Servicer, no Adverse Effect will occur; (ii) such change is made applicable to all dealer floorplan accounts owned or serviced by the Servicer; and (iii) in the case of a reduction in the rate of interest charged on the Receivables, the Servicer does not reasonably expect that the reduction will result in the Average Reference Rate for any Collection Period being less than the sum of (A) the weighted average of the Note Interest Rates plus (B) the applicable rate used to calculate the Servicing Fee and the Back-up Servicing Fee, whether or not they are then payable, for the related Interest Period (each such term as defined in the related Indenture Supplement). For purposes of clause (iii) above, so long as the Reference Rate is based on the prime rate of one or more banks (which bank or banks may change from time to time), decreases in the Reference Rate will not be deemed to be a reduction in the rate of interest charged on the Receivables; provided that a decrease in the margin used to determine the interest charged on the Receivables would be deemed to be a reduction. (e) On behalf of the Issuer (to the extent of the Issuer’s interest in the following), the Servicer agrees that it holds in trust any document in its possession or control evidencing or securing a Receivable and necessary for its servicing pursuant to this Agreement, including the documents provided to the Servicer pursuant to Section 2.5(h) and all other documents created by the Servicer in connection with its servicing pursuant to this Agreement, in each case, which documents may be in physical or electronic format. The Servicer acknowledges that it holds any documents relating to the Receivables in its possession or control as agent and bailee and custodian for the use and benefit of the Indenture Trustee and the Issuer.
Appears in 4 contracts
Samples: Sale and Servicing Agreement (Ford Credit Floorplan LLC), Sale and Servicing Agreement (Ford Credit Floorplan LLC), Sale and Servicing Agreement (Ford Credit Floorplan Corp)
Acceptance of Appointment and Other Matters Relating to Servicer. (a) FNBO agrees to act as Servicer under this Agreement. The Noteholders of each Series by their acceptance of the related Notes consent to FNBO acting as Servicer.
(b) Servicer will serviceshall service and administer the Receivables and shall collect payments due under the Receivables and shall charge off Receivables as uncollectible, manage, administer and make collections on the Receivables, all in accordance with its customary and usual servicing procedures for servicing dealer floorplan credit card receivables comparable to the Receivables that the Servicer services for its own account or others and and, subject to subsection (d) below, in accordance with the Floorplan Financing Guidelines. The Servicer has Credit Card Guidelines and shall have full power and authority, authority acting alone or through any party properly designated by it under this Agreementhereunder, to do any and all things in connection with such servicing and administration that which it may deem necessary or desirable. Without limiting the generality of the foregoingforegoing and subject to Section 7.01, the Servicer is hereby authorized and empowered to do any of the following:
(i) to make deposits into withdrawals from the Collection Account, the Excess Funding Account or any Series Account to the extent and as set forth in this Agreement, the Indenture or any Indenture Supplement, (ii) unless such power and authority is revoked on account of the occurrence of a Servicer Default pursuant to Section 7.01, to instruct the Indenture Trustee or the Owner Trustee to make withdrawals and payments payments, from the Collection Account, the Excess Funding Account and any Series Account Account, in accordance with such instructions as set forth in this Agreement, the Indenture or any Indenture Supplement andSupplement, (iii) unless such power and authority is revoked on account of the occurrence of a Servicer Default pursuant to Section 7.01, to instruct Indenture Trustee in connection with the foregoingwriting, perform all calculations (including any allocations of funds and other amounts) required to be performed by the Servicer as provided set forth in this Agreement, the Indenture or any Indenture Supplement;
, (iiiv) to take any actions required or permitted under any Enhancement, (v) to execute and deliver, on behalf of Issuer for the Issuerbenefit of the Noteholders, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the ReceivablesReceivables and, after the delinquency of any Receivable and to the extent permitted under and in compliance with Applicable Lawapplicable law and regulations, to commence enforcement proceedings with respect to such Receivables;
Receivables and (iiivi) to make any filings, reports, notices, applications, registrations with, and to seek any consents or authorizations from, the Securities and Exchange Commission and any state securities authority on behalf of the Issuer as may be necessary or advisable to comply with any federal or state securities laws or reporting requirement; and
requirements. Indenture Trustee agrees that it shall promptly follow the written instructions of Servicer to withdraw funds from the Collection Account, the Excess Funding Account or any Series Account and to take any action required under any Enhancement at such time as required under this Agreement, the Indenture or any Indenture Supplement. Each of Owner Trustee and Indenture Trustee shall execute at Servicer’s written request such documents prepared by Transferor and acceptable to Owner Trustee or Indenture Trustee (ivas applicable) as may be necessary or appropriate to delegate certain of enable Servicer to carry out its servicing, collection, enforcement servicing and administrative duties under this Agreement with respect to the Accounts and the Receivables to any Person; provided, however, that no delegation will relieve the Servicer of its liability and responsibility with respect to such delegated dutieshereunder. The Indenture Trustee and the Owner Trustee will shall furnish the Servicer with any powers of attorney and other documents reasonably from Owner Trustee and Indenture Trustee necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties under this Agreementhereunder.
(bc) If In the Depositor event that Transferor is unable for any reason to sell transfer Receivables to the Issuer in accordance with the provisions of this AgreementAgreement (including by reason of the application of the provisions of Section 6.01 or the order of any federal governmental agency having regulatory authority over Transferor or any court of competent jurisdiction that Transferor not transfer any additional Principal Receivables to Issuer) then, then the Servicer agrees (i) to give prompt notice of such inability to the Indenture Trustee, the Owner Trustee and each Rating Agency and (ii) after the occurrence of in any such event, Servicer agrees to allocate Collections received in respect of each related Account in accordance with the provisions of Section 2.5(b2.05(d).
(c) The Servicer will not, and any Successor Servicer will not, be obligated to use servicing procedures, offices, employees or accounts for servicing the Receivables different from the procedures, offices, employees and accounts used by it in connection with servicing other floorplan receivables.
(d) The Servicer will shall comply with and perform its servicing obligations with respect to the Accounts and Receivables in accordance with the related Floorplan Financing Credit Card Agreements relating to the Accounts and the Floorplan Financing GuidelinesCredit Card Guidelines and all applicable rules and regulations of VISA USA, Inc. and MasterCard International Incorporated, except insofar as any failure to so comply or perform would not materially and adversely affect the rights of the Issuer Issuer, Indenture Trustee or the Noteholders. Subject to compliance with Applicable Law, the Servicer may change the terms and provisions of any of the Floorplan Financing Agreements or the Floorplan Financing Guidelines in any respect (including the calculation of the amount or the timing of charge offs and the rate of interest charged on the Receivables), only if:
(i) as a result of such change, in the reasonable judgment of the Servicer, no Adverse Effect will occur;
(ii) such change is made applicable to all dealer floorplan accounts owned or serviced by the Servicer; and
(iii) in the case of a reduction in the rate of interest charged on the Receivables, the Servicer does not reasonably expect that the reduction will result in the Average Reference Rate for any Collection Period being less than the sum of (A) the weighted average of the Note Interest Rates plus (B) the applicable rate used to calculate the Servicing Fee and the Back-up Servicing Fee, whether or not they are then payable, for the related Interest Period (each such term as defined in the related Indenture Supplement). For purposes of clause (iii) above, so long as the Reference Rate is based on the prime rate of one or more banks (which bank or banks may change from time to time), decreases in the Reference Rate will not be deemed to be a reduction in the rate of interest charged on the Receivables; provided that a decrease in the margin used to determine the interest charged on the Receivables would be deemed to be a reduction.
(e) On behalf of Servicer shall not be obligated to use separate servicing procedures, offices, employees or accounts for servicing the Issuer (to Receivables from the extent of the Issuer’s interest in the following)procedures, the Servicer agrees that it holds in trust any document in its possession or control evidencing or securing a Receivable offices, employees and necessary for its servicing pursuant to this Agreement, including the documents provided to the Servicer pursuant to Section 2.5(h) and all other documents created accounts used by the Servicer in connection with servicing other credit card receivables.
(f) Servicer shall maintain fidelity bond coverage insuring against losses through wrongdoing of its officers and employees who are involved in the servicing pursuant of credit card receivables covering such actions and in such amounts as Servicer believes to be reasonable from time to time.
(g) The relationship of Servicer (and of any successor to Servicer as servicer under this Agreement, in each case, which documents may be in physical or electronic format. The Servicer acknowledges that it holds any documents relating ) to the Receivables in its possession or control as agent and bailee and custodian for the use and benefit of the Indenture Trustee under this Agreement is intended by the parties to be that of an independent contractor and the Issuernot that of a joint venturer, partner or agent of Indenture Trustee.
Appears in 3 contracts
Samples: Transfer and Servicing Agreement (First National Funding LLC), Transfer and Servicing Agreement (First National Funding LLC), Transfer and Servicing Agreement (First National Master Note Trust)
Acceptance of Appointment and Other Matters Relating to Servicer. (a) The Servicer will service, manage, administer and make collections on the Receivables, all in accordance with its customary and usual servicing procedures for servicing dealer floorplan receivables comparable to the Receivables that the Servicer services for its own account or others and in accordance with the applicable Floorplan Financing Guidelines. The Servicer has full power and authority, acting alone or through any party properly designated by it under this Agreementhereunder, to do any and all things in connection with such servicing and administration that it may deem necessary or desirable. Without limiting the generality of the foregoingforegoing and subject to Section 6.01, the Servicer is hereby authorized and empowered empowered, unless such power and authority is revoked by the Indenture Trustee upon the occurrence of a Servicer Default pursuant to Section 6.01, to do any of the following:
(i) to make deposits into the Collection Account and to instruct the Indenture Trustee or the Owner Trustee to make withdrawals and payments from the Collection Account, the Excess Funding Account and any Series Account as set forth in this Agreement, the Indenture or any Indenture Supplement and, in connection with the foregoingtherewith, perform all calculations (including any allocations of funds and other amounts) required to be performed by the Servicer as provided in this Agreement, the Indenture or any Indenture Supplement;
(ii) to instruct the Indenture Trustee or the Owner Trustee to take any action required or permitted under any Series Enhancement;
(iii) to execute and deliver, on behalf of the Issuer, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the Receivables, after the delinquency of any Receivable and to the extent permitted under and in compliance with Applicable applicable Requirements of Law, to commence enforcement proceedings with respect to such Receivables;
(iiiiv) to make any filings, reports, notices, applications, registrations with, and seek any consents or authorizations from, the Securities and Exchange Commission and any state securities authority on behalf of the Issuer as may be necessary or advisable to comply with any federal or state securities laws or reporting requirement; and
(ivv) to delegate certain of its servicing, collection, enforcement and administrative duties under this Agreement hereunder with respect to the Accounts and the Receivables to any PersonPerson who agrees to conduct such duties in accordance with the applicable Floorplan Financing Guidelines and this Agreement; provided, however, that the Servicer will notify the Indenture Trustee, the Owner Trustee, the Rating Agencies and any Series Enhancers in writing of any such delegation other than in the ordinary course of its business or to a Person that is not one of the Servicer’s Affiliates; and, provided further, that no delegation will relieve the Servicer of its liability and responsibility with respect to such delegated dutiesduties and will not constitute a resignation within the meaning of Section 5.05. The Indenture Trustee and the Owner Trustee will furnish the Servicer with any powers of attorney and other documents reasonably necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties under this Agreementhereunder.
(b) If the Depositor Transferor is unable for any reason to sell transfer Receivables to the Issuer in accordance with the provisions of this AgreementAgreement then, then in any such event, the Servicer agrees (i) to give prompt written notice of such inability thereof to the Indenture Trustee, the Owner Trustee Trustee, any Series Enhancers and each Rating Agency and (ii) after the occurrence of such event, to allocate Collections received in respect of each related Account in accordance with Section 2.5(b2.05(ii).
(c) The Servicer will not, and any Successor Servicer will not, be obligated to use servicing procedures, offices, employees or accounts for servicing the Receivables different from the procedures, offices, employees and accounts used by it the Servicer in connection with servicing other floorplan receivables.
(d) The Servicer will comply with and perform its servicing obligations with respect to the Accounts and Receivables in accordance with the related applicable Floorplan Financing Agreements relating to the Accounts and the applicable Floorplan Financing Guidelines, except insofar as any failure to so comply or perform would not materially and adversely affect the rights of the Issuer or the NoteholdersNoteholders and any Series Enhancers. Subject to compliance with Applicable all Requirements of Law, the Servicer may change the terms and provisions of any of the Floorplan Financing Agreements or the its Floorplan Financing Guidelines in any respect (including the calculation of the amount or the timing of charge offs and the rate of the interest charged on the Receivablescharge assessed thereon), only if:
(i) as a result of such change, in the reasonable judgment of the Servicer, no Adverse Effect Amortization Event will occuroccur at any time and none of the Series Enhancers, if any, or the Noteholders will be adversely affected;
(ii) such change is made applicable to all the comparable segment of dealer floorplan accounts owned or serviced by the ServicerServicer that have characteristics the same as, or substantially similar to, the Accounts that are the subject of such change; and
(iii) in the case of a reduction in the rate of such interest charged on the Receivablescharges, the Servicer does not reasonably expect that the any such reduction will to result in the Average weighted average of the Reference Rate Rates applicable to the Receivables (net of the applicable rate used to calculate the Servicing Fee) for any Collection Period being less than the sum of (A) the weighted average of the Note Interest Rates plus and (B) the applicable rate used to calculate the Servicing Fee and the Back-up Servicing Fee, whether or not they are then payable, for the related Interest Period (each such term as defined in the related Indenture Supplement). For purposes of clause (iii) aboveof the preceding sentence, so long as the Reference Rate is based on the prime rate of one or more banks (which bank or banks may change from time to time), decreases downward fluctuations in the Reference Rate will not be deemed to be a reduction in the rate of such interest charged on the Receivablescharges; provided that a decrease reduction in the margin used added to such Reference Rate to determine the interest charged on the Receivables charge would be deemed to be a reductionreduction in such interest charge.
(e) On behalf of the Issuer (to the extent of the Issuer’s interest in the followingtherein), the Servicer hereby agrees that it holds in trust any document in its possession or control evidencing or securing a Receivable and necessary for its servicing thereof pursuant to this Agreement, including the documents provided to the Servicer pursuant to Section 2.5(h) and all other documents created by the Servicer in connection with its servicing pursuant to this Agreement, in each case, which documents may be in physical or electronic format. The Servicer acknowledges that it holds any documents relating to the Receivables in its possession or control as agent and bailee and custodian for the use and benefit of the Indenture Trustee and the Issuer.
Appears in 2 contracts
Samples: Transfer and Servicing Agreement (Ford Credit Floorplan LLC), Transfer and Servicing Agreement (Ford Credit Floorplan LLC)
Acceptance of Appointment and Other Matters Relating to Servicer. (a) The Servicer will service, manage, administer and make collections on the Receivables, all in accordance with its customary and usual servicing procedures for servicing dealer floorplan receivables comparable to the Receivables that the Servicer services for its own account or others and in accordance with the applicable Floorplan Financing Guidelines. The Servicer has full power and authority, acting alone or through any party properly designated by it under this Agreementhereunder, to do any and all things in connection with such servicing and administration that it may deem necessary or desirable. Without limiting the generality of the foregoingforegoing and subject to Section 6.01, the Servicer is hereby authorized and empowered empowered, unless such power and authority is revoked by the Indenture Trustee upon the occurrence of a Servicer Default pursuant to Section 6.01, to do any of the following:
(i) to make deposits into the Collection Account and to instruct the Indenture Trustee or the Owner Trustee to make withdrawals and payments from the Collection Account, the Excess Funding Account and any Series Account as set forth in this Agreement, the Indenture or any Indenture Supplement and, in connection with the foregoingtherewith, perform all calculations (including any allocations of funds and other amounts) required to be performed by the Servicer as provided in this Agreement, the Indenture or any Indenture Supplement;
(ii) to instruct the Indenture Trustee or the Owner Trustee to take any action required or permitted under any Series Enhancement;
(iii) to execute and deliver, on behalf of the Issuer, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the ReceivablesReceivables and, after the delinquency of any Receivable and to the extent permitted under and in compliance with Applicable applicable Requirements of Law, to commence enforcement proceedings with respect to such Receivables;
(iiiiv) to make any filings, reports, notices, applications, registrations with, and seek any consents or authorizations from, the Securities and Exchange Commission and any state securities authority on behalf of the Issuer as may be necessary or advisable to comply with any federal or state securities laws or reporting requirement; and
(ivv) to delegate certain of its servicing, collection, enforcement and administrative duties under this Agreement hereunder with respect to the Accounts and the Receivables to any PersonPerson who agrees to conduct such duties in accordance with the applicable Floorplan Financing Guidelines and this Agreement; provided, however, that the Servicer will notify the Indenture Trustee, the Owner Trustee, the Rating Agencies and any Series Enhancers in writing of any such delegation other than in the ordinary course of its business or to a Person that is not one of the Servicer's Affiliates; and, provided further, that no delegation will relieve the Servicer of its liability and responsibility with respect to such delegated dutiesduties and will not constitute a resignation within the meaning of Section 5.05. The Indenture Trustee and the Owner Trustee will furnish the Servicer with any powers of attorney and other documents reasonably necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties under this Agreementhereunder.
(b) If the Depositor Transferor is unable for any reason to sell transfer Receivables to the Issuer in accordance with the provisions of this AgreementAgreement then, then in any such event, the Servicer agrees (i) to give prompt written notice of such inability thereof to the Indenture Trustee, the Owner Trustee Trustee, any Series Enhancers and each Rating Agency and (ii) after the occurrence of such event, to allocate Collections received in respect of each related Account in accordance with Section 2.5(b2.05(ii).
(c) The Servicer will not, and any Successor Servicer will not, be obligated to use servicing procedures, offices, employees or accounts for servicing the Receivables different from the procedures, offices, employees and accounts used by it the Servicer in connection with servicing other floorplan receivables.
(d) The Servicer will comply with and perform its servicing obligations with respect to the Accounts and Receivables in accordance with the related applicable Floorplan Financing Agreements relating to the Accounts and the applicable Floorplan Financing Guidelines, except insofar as any failure to so comply or perform would not materially and adversely affect the rights of the Issuer or the NoteholdersNoteholders and any Series Enhancers. Subject to compliance with Applicable all Requirements of Law, the Servicer may change the terms and provisions of any of the Floorplan Financing Agreements or the its Floorplan Financing Guidelines in any respect (including the calculation of the amount or the timing of charge charge-offs and the rate of the interest charged on the Receivablescharge assessed thereon), only if:
(i) as a result of such change, in the reasonable judgment of the Servicer, no Adverse Effect Amortization Event will occuroccur at any time and none of the Series Enhancers, if any, or the Noteholders will be adversely affected;
(ii) such change is made applicable to all the comparable segment of dealer floorplan accounts owned or serviced by the ServicerServicer that have characteristics the same as, or substantially similar to, the Accounts that are the subject of such change; and
(iii) in the case of a reduction in the rate of such interest charged on the Receivablescharges, the Servicer does not reasonably expect that the any such reduction will to result in the Average weighted average of the Reference Rate Rates applicable to the Receivables (net of the applicable rate used to calculate the Servicing Fee) for any Collection Period being less than the sum of (A) the weighted average of the Note Interest Rates plus and (B) the applicable rate used to calculate the Servicing Fee and the Back-up Servicing Fee, whether or not they are then payable, for the related Interest Period (each such term as defined in the related Indenture Supplement). For purposes of clause (iii) aboveof the preceding sentence, so long as the Reference Rate is based on the prime rate of one or more banks (which bank or banks may change from time to time), decreases downward fluctuations in the Reference Rate will not be deemed to be a reduction in the rate of such interest charged on the Receivablescharges; provided that a decrease reduction in the margin used added to such Reference Rate to determine the interest charged on the Receivables charge would be deemed to be a reductionreduction in such interest charge.
(e) On behalf of the Issuer (to the extent of the Issuer’s 's interest in the followingtherein), the Servicer hereby agrees that it holds in trust any document in its possession or control evidencing or securing a Receivable and necessary for its servicing thereof pursuant to this Agreement, including the documents provided to the Servicer pursuant to Section 2.5(h) and all other documents created by the Servicer in connection with its servicing pursuant to this Agreement, in each case, which documents may be in physical or electronic format. The Servicer acknowledges that it holds any documents relating to the Receivables in its possession or control as agent and bailee and custodian for the use and benefit of the Indenture Trustee and the Issuer.
Appears in 2 contracts
Samples: Transfer and Servicing Agreement (Ford Credit Floorplan LLC), Transfer and Servicing Agreement (Ford Credit Floorplan LLC)
Acceptance of Appointment and Other Matters Relating to Servicer. (a) Transferor agrees to act as Servicer under this Agreement. The Investor Holders of each Series by their acceptance of the related Certificates consent to Transferor acting as Servicer.
(b) Servicer will service, manage, shall service and administer the Receivables and make collections on shall collect payments due under the Receivables, all Receivables in accordance with its customary and usual servicing procedures for servicing dealer floorplan credit card or other receivables comparable to the Receivables that the Servicer services for its own account or others and in accordance with the Floorplan Financing Guidelines. The Servicer has Account Guidelines and shall have full power and authority, acting alone or through any party properly designated by it under this Agreementhereunder, to do any and all things in connection with such servicing and administration that which it may deem necessary or desirable. Without limiting the generality of the foregoingforegoing and subject to Section 10.1, the Servicer is hereby authorized and empowered to do any of the following:
(i) to make deposits into withdrawals from the Collection Account as set forth in this Agreement, (ii) unless such power and authority is revoked by Trustee on account of the occurrence of a Servicer Default pursuant to Section 10.1, to instruct the Indenture Trustee or the Owner Trustee to make withdrawals and payments from the Collection Finance Charge Account, the Excess Funding Account and any Series Account Account, in accordance with such instructions as set forth in this Agreement, (iii) unless such power and authority is revoked by Trustee on account of the Indenture or any Indenture Supplement andoccurrence of a Servicer Default pursuant to Section 10.1, to instruct Trustee in connection with the foregoingwriting, perform all calculations (including any allocations of funds and other amounts) required to be performed by the Servicer as provided set forth in this Agreement, the Indenture or any Indenture Supplement;
(iiiv) to execute and deliver, on behalf of the IssuerTrust for the benefit of the Holders, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the ReceivablesReceivables and, after the delinquency of any Receivable and to the extent permitted under and in compliance with Applicable Lawapplicable law and regulations, to commence enforcement proceedings with respect to such Receivables;
Receivables and (iiiv) to make any filingsfiling, reports, notices, applications, registrations with, and to seek any consents or authorizations from, the Securities and Exchange Commission and any state securities authority on behalf of the Issuer Trust as may be necessary or advisable to comply with any federal Federal or state securities laws or reporting requirement; and
(iv) requirements. Trustee agrees that it shall promptly follow the written instructions of Servicer to delegate certain of its servicingwithdraw funds from the Excess Funding Account, collectionthe Finance Charge Account or any Series Account and to take any action required under any Credit Enhancement, enforcement and administrative duties in each case at such time or times as required under this Agreement with respect Agreement. Trustee shall execute at Servicer's written request such documents prepared by Transferor and acceptable to the Accounts and the Receivables to any Person; provided, however, that no delegation will relieve the Servicer of its liability and responsibility with respect to such delegated duties. The Indenture Trustee and the Owner Trustee will furnish the Servicer with any powers of attorney and other documents reasonably as may be necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties under this Agreementhereunder.
(bc) If the Depositor Transferor is unable for any reason to sell transfer Receivables to the Issuer Trust in accordance with the provisions of this AgreementAgreement (including by reason of the application of the provisions of Section 9.2 or the order of any Federal governmental agency having regulatory authority over Transferor or any court of competent jurisdiction that Transferor not transfer any additional Principal Receivables to the Trust) then, then the in any such event, (A) Servicer agrees to allocate, after such date, all Collections with respect to Principal Receivables, all Discount Option Receivables Collections and all amounts which would have constituted Collections with respect to Principal Receivables and all Discount Option Receivables Collections but for Transferor's inability to transfer such Receivables (up to an aggregate amount equal to the aggregate amount of Principal Receivables and the Discount Option Receivables Amount in the Trust as of such date) in accordance with subsection 2.5(d); (B) Servicer agrees to apply such amounts as Collections in accordance with Article IV, and (C) for only so long as all Collections and all amounts which would have constituted Collections are allocated and applied in accordance with clauses (A) and (B) above, Principal Receivables and Discount Option Receivables (and all amounts which would have constituted Principal Receivables or Discount Option Receivables, as the case may be, but for Transferor's inability to transfer Receivables to the Trust) that are charged off as uncollectible in accordance with this Agreement shall continue to be allocated in accordance with Article IV, and all amounts which would have constituted Principal Receivables or Discount Option Receivables, as the case may be, but for Transferor's inability to transfer Receivables to the Trust shall be deemed to be Principal Receivables for the purpose of calculating (i) the applicable Investor Percentage with respect to give prompt notice of such inability to the Indenture Trustee, the Owner Trustee and each Rating Agency any Series and (ii) the Aggregate Investor Percentage thereunder. If Servicer is unable pursuant to any Requirement of Law to allocate payments on the Accounts as described above, Servicer agrees that it shall in any such event allocate, after the occurrence of such event, payments on each Account with respect to allocate the principal balance of such Account first to the oldest principal balance of such Account and to have such payments applied as Collections received in accordance with Article IV. The parties hereto agree that Finance Charge Receivables, whenever created, accrued in respect of each related Account Principal Receivables which have been conveyed to the Trust, or which would have been conveyed to the Trust but for the above described inability to transfer such Receivables, shall be deemed to be a part of the Trust notwithstanding any cessation of the transfer of additional Principal Receivables and Discount Option Receivables to the Trust, and Collections with resect thereto shall continue to be allocated and paid in accordance with Section 2.5(b)Article IV.
(cd) The If Transferor accepts reassignment of an Ineligible Receivable pursuant to subsection 2.4(d) then, in any such event, Servicer will notagrees to account for payments received with respect to such Ineligible Receivable separately from its accounting for Collections on Principal Receivables retained by the Trust. If payments received from or on behalf of an Obligor are not specifically applicable either to an Ineligible Receivable of such Obligor reassigned to Transferor or to Receivables of such Obligor retained in the Trust, then Servicer agrees to allocate payments proportionately based on the total amount of Principal Receivables of such Obligor retained in the Trust and the total amount owing by such Obligor on any Ineligible Receivables purchased by Transferor, and the portion allocable to any Successor Principal Receivables retained in the Trust shall be treated as Collections and deposited in accordance with the provisions of Article IV.
(e) Servicer will not, shall not be obligated to use separate servicing procedures, offices, employees or accounts for servicing the Receivables different from the procedures, offices, employees and accounts used by it Servicer in connection with servicing other floorplan credit card receivables.
(df) The Servicer will comply with shall maintain fidelity bond coverage insuring against losses through wrongdoing of its officers and perform its servicing obligations with respect to the Accounts and Receivables in accordance with the related Floorplan Financing Agreements and the Floorplan Financing Guidelines, except insofar as any failure to so comply or perform would not materially and adversely affect the rights of the Issuer or the Noteholders. Subject to compliance with Applicable Law, the Servicer may change the terms and provisions of any of the Floorplan Financing Agreements or the Floorplan Financing Guidelines in any respect (including the calculation of the amount or the timing of charge offs and the rate of interest charged on the Receivables), only if:
(i) as a result of such change, employees who are involved in the servicing of credit card receivables covering such actions and in such amounts as Servicer believes to be reasonable judgment of the Servicer, no Adverse Effect will occur;
(ii) such change is made applicable to all dealer floorplan accounts owned or serviced by the Servicer; and
(iii) in the case of a reduction in the rate of interest charged on the Receivables, the Servicer does not reasonably expect that the reduction will result in the Average Reference Rate for any Collection Period being less than the sum of (A) the weighted average of the Note Interest Rates plus (B) the applicable rate used to calculate the Servicing Fee and the Back-up Servicing Fee, whether or not they are then payable, for the related Interest Period (each such term as defined in the related Indenture Supplement). For purposes of clause (iii) above, so long as the Reference Rate is based on the prime rate of one or more banks (which bank or banks may change from time to time). The relationship of Servicer (and any Successor Servicer other than Trustee) to Trustee under this Agreement is intended by the parties to be that of independent contractor and not that of a joint venturer, decreases partner, or agent of Trustee, including any act of Servicer performed in the Reference Rate will not be deemed to be a reduction in the rate name of interest charged on the Receivables; provided that a decrease in the margin used to determine the interest charged on the Receivables would be deemed to be a reductionTrustee.
(e) On behalf of the Issuer (to the extent of the Issuer’s interest in the following), the Servicer agrees that it holds in trust any document in its possession or control evidencing or securing a Receivable and necessary for its servicing pursuant to this Agreement, including the documents provided to the Servicer pursuant to Section 2.5(h) and all other documents created by the Servicer in connection with its servicing pursuant to this Agreement, in each case, which documents may be in physical or electronic format. The Servicer acknowledges that it holds any documents relating to the Receivables in its possession or control as agent and bailee and custodian for the use and benefit of the Indenture Trustee and the Issuer.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (First National Bank of Commerce), Pooling and Servicing Agreement (First National Bank of Commerce)
Acceptance of Appointment and Other Matters Relating to Servicer. (a) WFCB agrees to act as Servicer under this Agreement. The Noteholders by their acceptance of the Notes consent to WFCB acting as Servicer.
(b) Subject to the provisions of this Agreement, Servicer will serviceshall service and administer the Receivables, manage, administer shall collect payments due under the Receivables and make collections on the shall charge off as uncollectible Receivables, all in accordance with its customary and usual servicing procedures for servicing dealer floorplan credit card and other credit receivables comparable to the Receivables that the Receivables. Servicer services for its own account or others and in accordance with the Floorplan Financing Guidelines. The Servicer has shall have full power and authority, acting alone or through any party properly designated by it under this Agreementhereunder, to do any and all things in connection with such servicing and administration that which it may deem necessary or desirable. Without limiting the generality of the foregoing, the subject to Section 7.1, Servicer or its designee (rather than Indenture Trustee or Owner Trustee) is hereby authorized and empowered to do any of the following:
(i) to instruct Indenture Trustee to make deposits into withdrawals from the Collection Account and any Series Account, as set forth in this Agreement, the Indenture or any Indenture Supplement, (ii) to instruct the Indenture Trustee or the Owner Trustee to make withdrawals and payments from the Collection Account, the Excess Funding Account and any Series Account Accounts in accordance with such instructions as set forth in this Agreement, the Indenture or any Indenture Supplement, (iii) to instruct Indenture Trustee in writing as provided herein, (iv) to take any action required or permitted under any Enhancement, as set forth in this Agreement, the Indenture or any Indenture Supplement and, in connection with the foregoing, perform all calculations and (including any allocations of funds and other amounts) required to be performed by the Servicer as provided in this Agreement, the Indenture or any Indenture Supplement;
(iiv) to execute and deliver, on behalf of Issuer for the Issuerbenefit of the Noteholders, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the ReceivablesReceivables and, after the delinquency of any Receivable and to the extent permitted under and in compliance with Applicable Lawapplicable law and regulations, to commence enforcement proceedings with respect to such Receivables;
(iii) . Without limiting the generality of the foregoing and subject to Section 7.1, Servicer or its designee is authorized and empowered to make any filings, reports, notices, applications, applications and registrations with, and to seek any consents or authorizations from, the Securities and Exchange Commission and any state securities authority on behalf of the Issuer as may be necessary or advisable to comply with any federal or state securities laws or reporting requirement; and
(iv) requirements. Indenture Trustee shall furnish Servicer with any powers of attorney or other documents necessary or appropriate to delegate certain of enable Servicer to carry out its servicing, collection, enforcement servicing and administrative duties under this Agreement with respect to the Accounts and the Receivables to any Person; provided, however, that no delegation will relieve the Servicer of its liability and responsibility with respect to such delegated dutieshereunder. The Indenture Trustee and the Owner Trustee will shall furnish the Servicer with any powers of attorney and other documents reasonably necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties under this Agreement.
(b) If the Depositor is unable for any reason to sell Receivables to the Issuer in accordance with the provisions of this Agreement, then the Servicer agrees (i) to give prompt notice of such inability to the Indenture Trustee, the Owner Trustee and each Rating Agency and (ii) after the occurrence of such event, to allocate Collections received in respect of each related Account in accordance with Section 2.5(b)hereunder.
(c) The Servicer will not, and any Successor Servicer will not, shall not be obligated to use separate servicing procedures, offices, employees or accounts for servicing the Receivables different from the procedures, offices, employees and accounts used by it Servicer in connection with servicing other floorplan credit card receivables.
(d) The Servicer will shall comply with and perform its servicing obligations with respect to the Accounts and Receivables in accordance with the related Floorplan Financing Account Agreements relating to the Accounts and the Floorplan Financing Guidelines, Account Guidelines except insofar as any failure to so comply or perform would not materially and adversely affect the rights of the Issuer or the Noteholders. Subject to compliance with Applicable Law, the Servicer may change the terms and provisions of any of the Floorplan Financing Agreements or the Floorplan Financing Guidelines in any respect (including the calculation of the amount or the timing of charge offs and the rate of interest charged on the Receivables), only if:
(i) as a result of such change, in the reasonable judgment of the Servicer, no Adverse Effect will occur;
(ii) such change is made applicable to all dealer floorplan accounts owned or serviced by the Servicer; and
(iii) in the case of a reduction in the rate of interest charged on the Receivables, the Servicer does not reasonably expect that the reduction will result in the Average Reference Rate for any Collection Period being less than the sum of (A) the weighted average of the Note Interest Rates plus (B) the applicable rate used to calculate the Servicing Fee and the Back-up Servicing Fee, whether or not they are then payable, for the related Interest Period (each such term as defined in the related Indenture Supplement). For purposes of clause (iii) above, so long as the Reference Rate is based on the prime rate of one or more banks (which bank or banks may change from time to time), decreases in the Reference Rate will not be deemed to be a reduction in the rate of interest charged on the Receivables; provided that a decrease in the margin used to determine the interest charged on the Receivables would be deemed to be a reduction.
(e) On behalf Servicer shall be liable for the payment, without reimbursement, of all expenses incurred in connection with Issuer and the servicing activities hereunder including expenses related to enforcement of the Issuer (Receivables, fees and disbursements of Owner Trustee that are due and payable to the extent it under Article 7 of the Issuer’s interest in Trust Agreement, Indenture Trustee, the followingAdministrator, any Paying Agent and any Transfer Agent and Registrar (including the reasonable fees and expenses of its counsel), the Servicer agrees that it holds in trust any document in its possession or control evidencing or securing a Receivable fees and necessary for its servicing pursuant to this Agreementdisbursements of independent accountants and all other fees and expenses, including the documents provided to costs of filing UCC continuation statements and the Servicer pursuant to Section 2.5(h) costs and all other documents created by the Servicer in connection with its servicing pursuant to this Agreement, in each case, which documents may be in physical or electronic format. The Servicer acknowledges that it holds any documents expenses relating to obtaining and maintaining the Receivables listing of any Notes on any stock exchange, that are not expressly stated in this Agreement to be payable by Issuer, the Noteholders of a Series or Transferor (other than federal, state, local and foreign income, franchise and other taxes, if any, or any interest or penalties with respect thereto, assessed on Issuer).
(f) Servicer shall maintain fidelity bond or other appropriate insurance coverage insuring against losses through wrongdoing of its possession or control officers and employees who are involved in the servicing of credit card receivables covering such actions and in such amounts as agent and bailee and custodian for the use and benefit of the Indenture Trustee and the IssuerServicer believes to be reasonable from time to time.
Appears in 2 contracts
Samples: Transfer and Servicing Agreement, Transfer and Servicing Agreement (Alliance Data Systems Corp)
Acceptance of Appointment and Other Matters Relating to Servicer. (a) FNBO agrees to act as Servicer under this Agreement. The Noteholders of each Series by their acceptance of the related Notes consent to FNBO acting as Servicer.
(b) Servicer will serviceshall service and administer the Receivables and shall collect payments due under the Receivables and shall charge off Receivables as uncollectible, manage, administer and make collections on the Receivables, all in accordance with its customary and usual servicing procedures for servicing dealer floorplan credit card receivables comparable to the Receivables that the Servicer services for its own account or others and and, subject to subsection (d) below, in accordance with the Floorplan Financing Guidelines. The Servicer has Credit Card Guidelines and shall have full power and authority, authority acting alone or through any party properly designated by it under this Agreementhereunder, to do any and all things in connection with such servicing and administration that which it may deem necessary or desirable. Without limiting the generality of the foregoingforegoing and subject to Section 7.01, the Servicer is hereby authorized and empowered to do any of the following:
(i) to make deposits into withdrawals from the Collection Account, the Excess Funding Account or any Series Account to the extent and as set forth in this Agreement, the Indenture or any Indenture Supplement, (ii) unless such power and authority is revoked on account of the occurrence of a Servicer Default pursuant to Section 7.01, to instruct the Indenture Trustee or the Owner Trustee to make withdrawals and payments payments, from the Collection Account, the Excess Funding Account and any Series Account Account, in accordance with such instructions as set forth in this Agreement, the Indenture or any Indenture Supplement andSupplement, (iii) unless such power and authority is revoked on account of the occurrence of a Servicer Default pursuant to Section 7.01, to instruct Indenture Trustee in connection with the foregoingwriting, perform all calculations (including any allocations of funds and other amounts) required to be performed by the Servicer as provided set forth in this Agreement, the Indenture or any Indenture Supplement;
, (iiiv) to take any actions required or permitted under any Enhancement, (v) to execute and deliver, on behalf of Issuer for the Issuerbenefit of the Noteholders, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the ReceivablesReceivables and, after the delinquency of any Receivable and to the extent permitted under and in compliance with Applicable Lawapplicable law and regulations, to commence enforcement proceedings with respect to such Receivables;
Receivables and (iiivi) to make any filings, reports, notices, applications, registrations with, and to seek any consents or authorizations from, the Securities and Exchange Commission and any state securities authority on behalf of the Issuer as may be necessary or advisable to comply with any federal or state securities laws or reporting requirement; and
requirements. Indenture Trustee agrees that it shall promptly follow the written instructions of Servicer to withdraw funds from the Collection Account, the Excess Funding Account or any Series Account and to take any action required under any Enhancement at such time as required under this Agreement, the Indenture or any Indenture Supplement. Each of Owner Trustee and Indenture Trustee shall execute at Servicer's written request such documents prepared by Transferor and acceptable to Owner Trustee or Indenture Trustee (ivas applicable) as may be necessary or appropriate to delegate certain of enable Servicer to carry out its servicing, collection, enforcement servicing and administrative duties under this Agreement with respect to the Accounts and the Receivables to any Person; provided, however, that no delegation will relieve the Servicer of its liability and responsibility with respect to such delegated dutieshereunder. The Indenture Trustee and the Owner Trustee will shall furnish the Servicer with any powers of attorney and other documents reasonably from Owner Trustee and Indenture Trustee necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties under this Agreementhereunder.
(bc) If In the Depositor event that Transferor is unable for any reason to sell transfer Receivables to the Issuer in accordance with the provisions of this AgreementAgreement (including by reason of the application of the provisions of Section 6.01 or the order of any federal governmental agency having regulatory authority over Transferor or any court of competent jurisdiction that Transferor not transfer any additional Principal Receivables to Issuer) then, then the Servicer agrees (i) to give prompt notice of such inability to the Indenture Trustee, the Owner Trustee and each Rating Agency and (ii) after the occurrence of in any such event, Servicer agrees to allocate Collections received in respect of each related Account in accordance with the provisions of Section 2.5(b2.05(d).
(c) The Servicer will not, and any Successor Servicer will not, be obligated to use servicing procedures, offices, employees or accounts for servicing the Receivables different from the procedures, offices, employees and accounts used by it in connection with servicing other floorplan receivables.
(d) The Servicer will shall comply with and perform its servicing obligations with respect to the Accounts and Receivables in accordance with the related Floorplan Financing Credit Card Agreements relating to the Accounts and the Floorplan Financing GuidelinesCredit Card Guidelines and all applicable rules and regulations of VISA USA, Inc. and MasterCard International Incorporated, except insofar as any failure to so comply or perform would not materially and adversely affect the rights of the Issuer Issuer, Indenture Trustee or the Noteholders. Subject to compliance with Applicable Law, the Servicer may change the terms and provisions of any of the Floorplan Financing Agreements or the Floorplan Financing Guidelines in any respect (including the calculation of the amount or the timing of charge offs and the rate of interest charged on the Receivables), only if:
(i) as a result of such change, in the reasonable judgment of the Servicer, no Adverse Effect will occur;
(ii) such change is made applicable to all dealer floorplan accounts owned or serviced by the Servicer; and
(iii) in the case of a reduction in the rate of interest charged on the Receivables, the Servicer does not reasonably expect that the reduction will result in the Average Reference Rate for any Collection Period being less than the sum of (A) the weighted average of the Note Interest Rates plus (B) the applicable rate used to calculate the Servicing Fee and the Back-up Servicing Fee, whether or not they are then payable, for the related Interest Period (each such term as defined in the related Indenture Supplement). For purposes of clause (iii) above, so long as the Reference Rate is based on the prime rate of one or more banks (which bank or banks may change from time to time), decreases in the Reference Rate will not be deemed to be a reduction in the rate of interest charged on the Receivables; provided that a decrease in the margin used to determine the interest charged on the Receivables would be deemed to be a reduction.
(e) On behalf of Servicer shall not be obligated to use separate servicing procedures, offices, employees or accounts for servicing the Issuer (to Receivables from the extent of the Issuer’s interest in the following)procedures, the Servicer agrees that it holds in trust any document in its possession or control evidencing or securing a Receivable offices, employees and necessary for its servicing pursuant to this Agreement, including the documents provided to the Servicer pursuant to Section 2.5(h) and all other documents created accounts used by the Servicer in connection with servicing other credit card receivables.
(f) Servicer shall maintain fidelity bond coverage insuring against losses through wrongdoing of its officers and employees who are involved in the servicing pursuant of credit card receivables covering such actions and in such amounts as Servicer believes to be reasonable from time to time.
(g) The relationship of Servicer (and of any successor to Servicer as servicer under this Agreement, in each case, which documents may be in physical or electronic format. The Servicer acknowledges that it holds any documents relating ) to the Receivables in its possession or control as agent and bailee and custodian for the use and benefit of the Indenture Trustee under this Agreement is intended by the parties to be that of an independent contractor and the Issuernot that of a joint venturer, partner or agent of Indenture Trustee.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (First Bankcard Master Credit Card Trust)
Acceptance of Appointment and Other Matters Relating to Servicer. (a) Transferor agrees to act as Servicer under this Agreement. The Investor Holders of each Series by their acceptance of the related Certificates consent to Transferor acting as Servicer.
(b) Servicer will service, manage, shall service and administer the Receivables and make collections on shall collect payments due under the Receivables, all Receivables in accordance with its customary and usual servicing procedures for servicing dealer floorplan credit card or other receivables comparable to the Receivables that the Servicer services for its own account or others and in accordance with the Floorplan Financing Guidelines. The Servicer has Account Guidelines and shall have full power and authority, acting alone or through any party properly designated by it under this Agreementhereunder, to do any and all things in connection with such servicing and administration that which it may deem necessary or desirable. Without limiting the generality of the foregoingforegoing and subject to Section 10.1, the Servicer is hereby authorized and empowered to do any of the following:
(i) to make deposits into withdrawals from the Collection Account as set forth in this Agreement, (ii) unless such power and authority is revoked by Trustee on account of the occurrence of a Servicer Default pursuant to Section 10.1, to instruct the Indenture Trustee or the Owner Trustee to make withdrawals and payments from the Collection Finance Charge Account, the Excess Funding Account and any Series Account Account, in accordance with such instructions as set forth in this Agreement, (iii) unless such power and authority is revoked by Trustee on account of the Indenture or any Indenture Supplement andoccurrence of a Servicer Default pursuant to Section 10.1, to instruct Trustee in connection with the foregoingwriting, perform all calculations (including any allocations of funds and other amounts) required to be performed by the Servicer as provided set forth in this Agreement, the Indenture or any Indenture Supplement;
(iiiv) to execute and deliver, on behalf of the IssuerTrust for the benefit of the Holders, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the ReceivablesReceivables and, after the delinquency of any Receivable and to the extent permitted under and in compliance with Applicable Lawapplicable law and regulations, to commence enforcement proceedings with respect to such Receivables;
Receivables and (iiiv) to make any filingsfiling, reports, notices, applications, registrations with, and to seek any consents or authorizations from, the Securities and Exchange Commission and any state securities authority on behalf of the Issuer Trust as may be necessary or advisable to comply with any federal Federal or state securities laws or reporting requirement; and
(iv) requirements. Trustee agrees that it shall promptly follow the instructions of Servicer to delegate certain of its servicingwithdraw funds from the Excess Funding Account, collectionthe Finance Charge Account or any Series Account and to take any action required under any Credit Enhancement, enforcement and administrative duties in each case at such time or times as required under this Agreement with respect Agreement. Trustee shall execute at Servicer's written request such documents prepared by Transferor and acceptable to the Accounts and the Receivables to any Person; provided, however, that no delegation will relieve the Servicer of its liability and responsibility with respect to such delegated duties. The Indenture Trustee and the Owner Trustee will furnish the Servicer with any powers of attorney and other documents reasonably as may be necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties under this Agreementhereunder.
(bc) If the Depositor Transferor is unable for any reason to sell transfer Receivables to the Issuer Trust in accordance with the provisions of this AgreementAgreement (including by reason of the application of the provisions of Section 9.2 or the order of any Federal governmental agency having regulatory authority over Transferor or any court of competent jurisdiction that Transferor not transfer any additional Principal Receivables to the Trust) then, then the in any such event, (A) Servicer agrees to allocate, after such date, all Collections with respect to Principal Receivables, all Discount Option Receivables Collections and all amounts which would have constituted Collections with respect to Principal Receivables and all Discount Option Receivables Collections but for Transferor's inability to transfer such Receivables (up to an aggregate amount equal to the aggregate amount of Principal Receivables and the Discount Option Receivables Amount in the Trust as of such date) in accordance with subsection 2.5(d); (B) Servicer agrees to apply such amounts as Collections in accordance with Article IV, and (C) for only so long as all Collections and all amounts which would have constituted Collections are allocated and applied in accordance with clauses (A) and (B) above, Principal Receivables and Discount Option Receivables (and all amounts which would have constituted Principal Receivables or Discount Option Receivables, as the case may be, but for Transferor's inability to transfer Receivables to the Trust) that are charged off as uncollectible in accordance with this Agreement shall continue to be allocated in accordance with Article IV, and all amounts which would have constituted Principal Receivables or Discount Option Receivables, as the case may be, but for Transferor's inability to transfer Receivables to the Trust shall be deemed to be Principal Receivables for the purpose of calculating (i) the applicable Investor Percentage with respect to give prompt notice of such inability to the Indenture Trustee, the Owner Trustee and each Rating Agency any Series and (ii) the Aggregate Investor Percentage thereunder. If Servicer is unable pursuant to any Requirement of Law to allocate payments on the Accounts as described above, Servicer agrees that it shall in any such event allocate, after the occurrence of such event, payments on each Account with respect to allocate the principal balance of such Account first to the oldest principal balance of such Account and to have such payments applied as Collections received in accordance with Article IV. The parties hereto agree that Finance Charge Receivables, whenever created, accrued in respect of each related Account Principal Receivables which have been conveyed to the Trust, or which would have been conveyed to the Trust but for the above described inability to transfer such Receivables, shall be deemed to be a part of the Trust notwithstanding any cessation of the transfer of additional Principal Receivables and Discount Option Receivables to the Trust, and Collections with resect thereto shall continue to be allocated and paid in accordance with Section 2.5(b)Article IV.
(cd) The If Transferor accepts reassignment of an Ineligible Receivable pursuant to subsection 2.4(d) then, in any such event, Servicer will notagrees to account for payments received with respect to such Ineligible Receivable separately from its accounting for Collections on Principal Receivables retained by the Trust. If payments received from or on behalf of an Obligor are not specifically applicable either to an Ineligible Receivable of such Obligor reassigned to Transferor or to Receivables of such Obligor retained in the Trust, then Servicer agrees to allocate payments proportionately based on the total amount of Principal Receivables of such Obligor retained in the Trust and the total amount owing by such Obligor on any Ineligible Receivables purchased by Transferor, and the portion allocable to any Successor Principal Receivables retained in the Trust shall be treated as Collections and deposited in accordance with the provisions of Article IV.
(e) Servicer will not, shall not be obligated to use separate servicing procedures, offices, employees or accounts for servicing the Receivables different from the procedures, offices, employees and accounts used by it Servicer in connection with servicing other floorplan credit card receivables.
(df) The Servicer will comply with shall maintain fidelity bond coverage insuring against losses through wrongdoing of its officers and perform its servicing obligations with respect to the Accounts and Receivables in accordance with the related Floorplan Financing Agreements and the Floorplan Financing Guidelines, except insofar as any failure to so comply or perform would not materially and adversely affect the rights of the Issuer or the Noteholders. Subject to compliance with Applicable Law, the Servicer may change the terms and provisions of any of the Floorplan Financing Agreements or the Floorplan Financing Guidelines in any respect (including the calculation of the amount or the timing of charge offs and the rate of interest charged on the Receivables), only if:
(i) as a result of such change, employees who are involved in the servicing of credit card receivables covering such actions and in such amounts as Servicer believes to be reasonable judgment of the Servicer, no Adverse Effect will occur;
(ii) such change is made applicable to all dealer floorplan accounts owned or serviced by the Servicer; and
(iii) in the case of a reduction in the rate of interest charged on the Receivables, the Servicer does not reasonably expect that the reduction will result in the Average Reference Rate for any Collection Period being less than the sum of (A) the weighted average of the Note Interest Rates plus (B) the applicable rate used to calculate the Servicing Fee and the Back-up Servicing Fee, whether or not they are then payable, for the related Interest Period (each such term as defined in the related Indenture Supplement). For purposes of clause (iii) above, so long as the Reference Rate is based on the prime rate of one or more banks (which bank or banks may change from time to time), decreases in the Reference Rate will not be deemed to be a reduction in the rate of interest charged on the Receivables; provided that a decrease in the margin used to determine the interest charged on the Receivables would be deemed to be a reduction.
(e) On behalf of the Issuer (to the extent of the Issuer’s interest in the following), the Servicer agrees that it holds in trust any document in its possession or control evidencing or securing a Receivable and necessary for its servicing pursuant to this Agreement, including the documents provided to the Servicer pursuant to Section 2.5(h) and all other documents created by the Servicer in connection with its servicing pursuant to this Agreement, in each case, which documents may be in physical or electronic format. The Servicer acknowledges that it holds any documents relating to the Receivables in its possession or control as agent and bailee and custodian for the use and benefit of the Indenture Trustee and the Issuer.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First National Bank of Commerce)
Acceptance of Appointment and Other Matters Relating to Servicer. (a) The WFN is appointed, and agrees to act, as Servicer.
(b) Servicer will serviceshall service and administer the Receivables, manage, administer shall collect payments due under the Receivables and make collections on the shall charge off as uncollectible Receivables, all in accordance with its customary and usual servicing procedures for servicing dealer floorplan credit card and other consumer open end credit receivables comparable to the Receivables that the Servicer services for its own account or others and in accordance with the Floorplan Financing Credit Card Guidelines. The Servicer has shall have full power and authority, acting alone or through any party properly designated by it under this Agreementhereunder, to do any and all things in connection with such servicing and administration that which it may deem necessary or desirable. Without limiting the generality of the foregoing, the subject to SECTION 10.1 and provided WFN is Servicer, Servicer or its designee (rather than Trustee) is hereby authorized and empowered to do any of the following:
(i) to make deposits into the Collection Account withdrawals and payments or to instruct the Indenture Trustee or the Owner Trustee to make withdrawals and payments from the Collection Account, the Excess Funding Account and any Series Account Account, as set forth in this Agreement, the Indenture Agreement or any Indenture Supplement andSupplement, in connection with the foregoing, perform all calculations (including any allocations of funds and other amounts) required to be performed by the Servicer as provided in this Agreement, the Indenture or any Indenture Supplement;
(ii) to execute and delivertake any action required or permitted under any Enhancement, on behalf as set forth in this Agreement or any Supplement. Without limiting the generality of the Issuerforegoing and subject to SECTION 10.1, any Servicer or its designee is authorized and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the Receivables, after the delinquency of any Receivable and to the extent permitted under and in compliance with Applicable Law, to commence enforcement proceedings with respect to such Receivables;
(iii) empowered to make any filings, reports, notices, applications, applications and registrations with, and to seek any consents or authorizations from, the Securities and Exchange Commission and any state securities authority on behalf of the Issuer Trust as may be necessary or advisable to comply with any federal Federal or state securities laws or reporting requirement; and
(iv) to delegate certain of its servicing, collection, enforcement and administrative duties under this Agreement with respect to the Accounts and the Receivables to any Person; provided, however, that no delegation will relieve the Servicer of its liability and responsibility with respect to such delegated dutiesrequirements. The Indenture Trustee and the Owner Trustee will shall furnish the Servicer with any powers of attorney and or other documents reasonably necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties under this Agreement.
(b) If the Depositor is unable for any reason to sell Receivables to the Issuer in accordance with the provisions of this Agreement, then the Servicer agrees (i) to give prompt notice of such inability to the Indenture Trustee, the Owner Trustee and each Rating Agency and (ii) after the occurrence of such event, to allocate Collections received in respect of each related Account in accordance with Section 2.5(b)hereunder.
(c) The Servicer will not, and any Successor Servicer will not, shall not be obligated to use separate servicing procedures, offices, employees or accounts for servicing the Receivables different from the procedures, offices, employees and accounts used by it Servicer in connection with servicing other floorplan credit card receivables.
(d) The Servicer will shall comply with and perform its servicing obligations with respect to the Accounts and Receivables in accordance with the related Floorplan Financing Credit Card Agreements relating to the Accounts and the Floorplan Financing Guidelines, Credit Card Guidelines except insofar as any failure to so comply or perform would not materially and adversely affect the rights of the Issuer Trust or the Noteholders. Subject to compliance with Applicable Law, the Servicer may change the terms and provisions of any of the Floorplan Financing Agreements or the Floorplan Financing Guidelines in any respect (including the calculation of the amount or the timing of charge offs and the rate of interest charged on the Receivables), only if:
(i) as a result of such change, in the reasonable judgment of the Servicer, no Adverse Effect will occur;
(ii) such change is made applicable to all dealer floorplan accounts owned or serviced by the Servicer; and
(iii) in the case of a reduction in the rate of interest charged on the Receivables, the Servicer does not reasonably expect that the reduction will result in the Average Reference Rate for any Collection Period being less than the sum of (A) the weighted average of the Note Interest Rates plus (B) the applicable rate used to calculate the Servicing Fee and the Back-up Servicing Fee, whether or not they are then payable, for the related Interest Period (each such term as defined in the related Indenture Supplement). For purposes of clause (iii) above, so long as the Reference Rate is based on the prime rate of one or more banks (which bank or banks may change from time to time), decreases in the Reference Rate will not be deemed to be a reduction in the rate of interest charged on the Receivables; provided that a decrease in the margin used to determine the interest charged on the Receivables would be deemed to be a reductionInvestor Holders.
(e) On behalf Servicer shall be liable for the payment, without reimbursement, of all expenses incurred in connection with the Trust and the servicing activities hereunder including expenses related to enforcement of the Issuer Receivables, fees and disbursements of Trustee, any Paying Agent and any Transfer Agent and Registrar (to including the extent reasonable fees and expenses of the Issuer’s interest its counsel) in the following)accordance with SECTION 11.5, the Servicer agrees that it holds in trust any document in its possession or control evidencing or securing a Receivable fees and necessary for its servicing pursuant to this Agreementdisbursements of independent accountants and all other fees and expenses, including the documents provided costs of filing UCC continuation statements and the costs and expenses relating to obtaining and maintaining the Servicer pursuant listing of any Investor Certificates on any stock exchange, that are not expressly stated in this Agreement to Section 2.5(h) and all other documents created be payable by the Trust, the Investor Holders of a Series or Transferor (other than Federal, state, local and foreign income, franchise and other taxes, if any, or any interest or penalties with respect thereto, assessed on the Trust).
(f) Servicer shall maintain fidelity bond or other appropriate insurance coverage insuring against losses through wrongdoing of its officers and employees who are involved in connection with its the servicing pursuant of credit card receivables covering such actions and in such amounts as Servicer believes to this Agreement, in each case, which documents may be in physical or electronic format. The Servicer acknowledges that it holds any documents relating reasonable from time to the Receivables in its possession or control as agent and bailee and custodian for the use and benefit of the Indenture Trustee and the Issuertime.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (World Financial Network Credit Card Master Trust)
Acceptance of Appointment and Other Matters Relating to Servicer. (a) FNBO agrees to act as Servicer under this Agreement. The Noteholders of each Series by their acceptance of the related Notes consent to FNBO acting as Servicer.
(b) Servicer will serviceshall service and administer the Receivables and shall collect payments due under the Receivables and shall charge off Receivables as uncollectible, manage, administer and make collections on the Receivables, all in accordance with its customary and usual servicing procedures for servicing dealer floorplan credit card receivables comparable to the Receivables that the Servicer services for its own account or others and and, subject to subsection (d) below, in accordance with the Floorplan Financing Guidelines. The Servicer has Credit Card Guidelines and shall have full power and authority, authority acting alone or through any party properly designated by it under this Agreementhereunder, to do any and all things in connection with such servicing and administration that which it may deem necessary or desirable. Without limiting the generality of the foregoingforegoing and subject to Section 7.01, the Servicer is hereby authorized and empowered to do any of the following:
(i) to make deposits into withdrawals from the Collection Account, the Excess Funding Account or any Series Account to the extent and as set forth in this Agreement, the Indenture or any Indenture Supplement, (ii) unless such power and authority is revoked on account of the occurrence of a Servicer Default pursuant to Section 7.01, to instruct the Indenture Trustee or the Owner Trustee to make withdrawals and payments payments, from the Collection Account, the Excess Funding Account and any Series Account Account, in accordance with such instructions as set forth in this Agreement, the Indenture or any Indenture Supplement andSupplement, (iii) unless such power and authority is revoked on account of the occurrence of a Servicer Default pursuant to Section 7.01, to instruct Indenture Trustee in connection with the foregoingwriting, perform all calculations (including any allocations of funds and other amounts) required to be performed by the Servicer as provided set forth in this Agreement, the Indenture or any Indenture Supplement;
, (iiiv) to take any actions required or permitted under any Enhancement, (v) to execute and deliver, on behalf of Issuer for the Issuerbenefit of the Noteholders, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the ReceivablesReceivables and, after the delinquency of any Receivable and to the extent permitted under and in compliance with Applicable Lawapplicable law and regulations, to commence enforcement proceedings with respect to such Receivables;
Receivables and (iiivi) to make any filings, reports, notices, applications, registrations with, and to seek any consents or authorizations from, the Securities and Exchange Commission and any state securities authority on behalf of the Issuer as may be necessary or advisable to comply with any federal or state securities laws or reporting requirement; and
requirements. Indenture Trustee agrees that it shall promptly follow the instructions of Servicer to withdraw funds from the Collection Account, the Excess Funding Account or any Series Account and to take any action required under any Enhancement at such time as required under this Agreement, the Indenture or any Indenture Supplement. Each of Owner Trustee and Indenture Trustee shall execute at Servicer's written request such documents prepared by Transferor and acceptable to Owner Trustee or Indenture Trustee (ivas applicable) as may be necessary or appropriate to delegate certain of enable Servicer to carry out its servicing, collection, enforcement servicing and administrative duties under this Agreement with respect to the Accounts and the Receivables to any Person; provided, however, that no delegation will relieve the Servicer of its liability and responsibility with respect to such delegated dutieshereunder. The Indenture Trustee and the Owner Trustee will shall furnish the Servicer with any powers of attorney and other documents reasonably from Owner Trustee and Indenture Trustee necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties under this Agreementhereunder.
(bc) If In the Depositor event that Transferor is unable for any reason to sell transfer Receivables to the Issuer in accordance with the provisions of this AgreementAgreement (including by reason of the application of the provisions of Section 6.01 or the order of any federal governmental agency having regulatory authority over Transferor or any court of competent jurisdiction that Transferor not transfer any additional Principal Receivables to Issuer) then, then the Servicer agrees (i) to give prompt notice of such inability to the Indenture Trustee, the Owner Trustee and each Rating Agency and (ii) after the occurrence of in any such event, Servicer agrees to allocate Collections received in respect of each related Account in accordance with the provisions of Section 2.5(b2.05(d).
(c) The Servicer will not, and any Successor Servicer will not, be obligated to use servicing procedures, offices, employees or accounts for servicing the Receivables different from the procedures, offices, employees and accounts used by it in connection with servicing other floorplan receivables.
(d) The Servicer will shall comply with and perform its servicing obligations with respect to the Accounts and Receivables in accordance with the related Floorplan Financing Credit Card Agreements relating to the Accounts and the Floorplan Financing GuidelinesCredit Card Guidelines and all applicable rules and regulations of VISA USA, Inc. and MasterCard International Incorporated, except insofar as any failure to so comply or perform would not materially and adversely affect the rights of the Issuer Issuer, Indenture Trustee or the Noteholders. Subject to compliance with Applicable Law, the Servicer may change the terms and provisions of any of the Floorplan Financing Agreements or the Floorplan Financing Guidelines in any respect (including the calculation of the amount or the timing of charge offs and the rate of interest charged on the Receivables), only if:
(i) as a result of such change, in the reasonable judgment of the Servicer, no Adverse Effect will occur;
(ii) such change is made applicable to all dealer floorplan accounts owned or serviced by the Servicer; and
(iii) in the case of a reduction in the rate of interest charged on the Receivables, the Servicer does not reasonably expect that the reduction will result in the Average Reference Rate for any Collection Period being less than the sum of (A) the weighted average of the Note Interest Rates plus (B) the applicable rate used to calculate the Servicing Fee and the Back-up Servicing Fee, whether or not they are then payable, for the related Interest Period (each such term as defined in the related Indenture Supplement). For purposes of clause (iii) above, so long as the Reference Rate is based on the prime rate of one or more banks (which bank or banks may change from time to time), decreases in the Reference Rate will not be deemed to be a reduction in the rate of interest charged on the Receivables; provided that a decrease in the margin used to determine the interest charged on the Receivables would be deemed to be a reduction.
(e) On behalf of Servicer shall not be obligated to use separate servicing procedures, offices, employees or accounts for servicing the Issuer (to Receivables from the extent of the Issuer’s interest in the following)procedures, the Servicer agrees that it holds in trust any document in its possession or control evidencing or securing a Receivable offices, employees and necessary for its servicing pursuant to this Agreement, including the documents provided to the Servicer pursuant to Section 2.5(h) and all other documents created accounts used by the Servicer in connection with servicing other credit card receivables.
(f) Servicer shall maintain fidelity bond coverage insuring against losses through wrongdoing of its officers and employees who are involved in the servicing pursuant of credit card receivables covering such actions and in such amounts as Servicer believes to be reasonable from time to time.
(g) The relationship of Servicer (and of any successor to Servicer as servicer under this Agreement, in each case, which documents may be in physical or electronic format. The Servicer acknowledges that it holds any documents relating ) to the Receivables in its possession or control as agent and bailee and custodian for the use and benefit of the Indenture Trustee under this Agreement is intended by the parties to be that of an independent contractor and the Issuernot that of a joint venturer, partner or agent of Indenture Trustee.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (First Bankcard Master Credit Card Trust)
Acceptance of Appointment and Other Matters Relating to Servicer. (a) WFN agrees to act as Servicer under this Agreement. The Noteholders by their acceptance of the Notes consent to WFN acting as Servicer.
(b) Subject to the provisions of this Agreement, Servicer will serviceshall service and administer the Receivables, manage, administer shall collect payments due under the Receivables and make collections on the shall charge off as uncollectible Receivables, all in accordance with its customary and usual servicing procedures for servicing dealer floorplan credit card and other consumer open end credit receivables comparable to the Receivables that the Servicer services for its own account or others and in accordance with the Floorplan Financing Credit Card Guidelines. The Servicer has shall have full power and authority, acting alone or through any party properly designated by it under this Agreementhereunder, to do any and all things in connection with such servicing and administration that which it may deem necessary or desirable. Without limiting the generality of the foregoing, the subject to SECTION 7.1, and provided WFN is Servicer, Servicer or its designee (rather than Indenture Trustee or Owner Trustee) is hereby authorized and empowered to do any of the following:
(i) to make deposits into withdrawals from the Collection Account and any Series Account, as set forth in this Agreement, the Indenture or any Indenture Supplement, (ii) to instruct the Indenture Trustee or the Owner Trustee to make withdrawals and payments from the Collection Account, the Excess Funding Account and any Series Account Accounts in accordance with such instructions as set forth in this Agreement, the Indenture or any Indenture Supplement, (iii) to instruct Indenture Trustee in writing as provided herein, (iv) to take any action required or permitted under any Enhancement, as set forth in this Agreement, the Indenture or any Indenture Supplement and, in connection with the foregoing, perform all calculations and (including any allocations of funds and other amounts) required to be performed by the Servicer as provided in this Agreement, the Indenture or any Indenture Supplement;
(iiv) to execute and deliver, on behalf of Issuer for the Issuerbenefit of the Noteholders, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the ReceivablesReceivables and, after the delinquency of any Receivable and to the extent permitted under and in compliance with Applicable Lawapplicable law and regulations, to commence enforcement proceedings with respect to such Receivables;
(iii) . Without limiting the generality of the foregoing and subject to SECTION 7.1, Servicer or its designee is authorized and empowered to make any filings, reports, notices, applications, applications and registrations with, and to seek any consents or authorizations from, the Securities and Exchange Commission and any state securities authority on behalf of the Issuer Trust as may be necessary or advisable to comply with any federal Federal or state securities laws or reporting requirement; and
(iv) requirements. Trustee shall furnish Servicer with any powers of attorney or other documents necessary or appropriate to delegate certain of enable Servicer to carry out its servicing, collection, enforcement servicing and administrative duties under this Agreement with respect to the Accounts and the Receivables to any Person; provided, however, that no delegation will relieve the Servicer of its liability and responsibility with respect to such delegated dutieshereunder. The Indenture Trustee and the Owner Trustee will shall furnish the Servicer with any powers of attorney and other documents reasonably necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties under this Agreement.
(b) If the Depositor is unable for any reason to sell Receivables to the Issuer in accordance with the provisions of this Agreement, then the Servicer agrees (i) to give prompt notice of such inability to the Indenture Trustee, the Owner Trustee and each Rating Agency and (ii) after the occurrence of such event, to allocate Collections received in respect of each related Account in accordance with Section 2.5(b)hereunder.
(c) The Servicer will not, and any Successor Servicer will not, shall not be obligated to use separate servicing procedures, offices, employees or accounts for servicing the Receivables different from the procedures, offices, employees and accounts used by it Servicer in connection with servicing other floorplan credit card receivables.
(d) The Servicer will shall comply with and perform its servicing obligations with respect to the Accounts and Receivables in accordance with the related Floorplan Financing Credit Card Agreements relating to the Accounts and the Floorplan Financing Guidelines, Credit Card Guidelines except insofar as any failure to so comply or perform would not materially and adversely affect the rights of the Issuer Trust or the Noteholders. Subject to compliance with Applicable Law, the Servicer may change the terms and provisions of any of the Floorplan Financing Agreements or the Floorplan Financing Guidelines in any respect (including the calculation of the amount or the timing of charge offs and the rate of interest charged on the Receivables), only if:
(i) as a result of such change, in the reasonable judgment of the Servicer, no Adverse Effect will occur;
(ii) such change is made applicable to all dealer floorplan accounts owned or serviced by the Servicer; and
(iii) in the case of a reduction in the rate of interest charged on the Receivables, the Servicer does not reasonably expect that the reduction will result in the Average Reference Rate for any Collection Period being less than the sum of (A) the weighted average of the Note Interest Rates plus (B) the applicable rate used to calculate the Servicing Fee and the Back-up Servicing Fee, whether or not they are then payable, for the related Interest Period (each such term as defined in the related Indenture Supplement). For purposes of clause (iii) above, so long as the Reference Rate is based on the prime rate of one or more banks (which bank or banks may change from time to time), decreases in the Reference Rate will not be deemed to be a reduction in the rate of interest charged on the Receivables; provided that a decrease in the margin used to determine the interest charged on the Receivables would be deemed to be a reduction.
(e) On behalf Servicer shall be liable for the payment, without reimbursement, of all expenses incurred in connection with the Trust and the servicing activities hereunder including expenses related to enforcement of the Issuer Receivables, fees and disbursements of Owner Trustee, Indenture Trustee, the Administrator, any Paying Agent and any Transfer Agent and Registrar (to including the extent reasonable fees and expenses of the Issuer’s interest in the followingits counsel), the Servicer agrees that it holds in trust any document in its possession or control evidencing or securing a Receivable fees and necessary for its servicing pursuant to this Agreementdisbursements of independent accountants and all other fees and expenses, including the documents provided costs of filing UCC continuation statements and the costs and expenses relating to obtaining and maintaining the Servicer pursuant listing of any Notes on any stock exchange, that are not expressly stated in this Agreement to Section 2.5(h) and all other documents created be payable by the Trust, the Noteholders of a Series or Transferor (other than Federal, state, local and foreign income, franchise and other taxes, if any, or any interest or penalties with respect thereto, assessed on the Trust).
(f) Servicer shall maintain fidelity bond or other appropriate insurance coverage insuring against losses through wrongdoing of its officers and employees who are involved in connection with its the servicing pursuant of credit card receivables covering such actions and in such amounts as Servicer believes to this Agreement, in each case, which documents may be in physical or electronic format. The Servicer acknowledges that it holds any documents relating reasonable from time to the Receivables in its possession or control as agent and bailee and custodian for the use and benefit of the Indenture Trustee and the Issuertime.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (World Financial Network Credit Card Master Trust)
Acceptance of Appointment and Other Matters Relating to Servicer. (a) CCB agrees to act as Servicer under this Agreement. The Noteholders by their acceptance of the Notes consent to CCB acting as Servicer.
(b) Subject to the provisions of this Agreement, Servicer will serviceshall service and administer the Receivables, manage, administer shall collect payments due under the Receivables and make collections on the shall charge off as uncollectible Receivables, all in accordance with its customary and usual servicing procedures for servicing dealer floorplan credit card and other credit receivables comparable to the Receivables that the Receivables. Servicer services for its own account or others and in accordance with the Floorplan Financing Guidelines. The Servicer has shall have full power and authority, acting alone or through any party properly designated by it under this Agreementhereunder, to do any and all things in connection with such servicing and administration that which it may deem necessary or desirable. Without limiting the generality of the foregoing, the subject to Sections 4.1 and 4.2, Servicer or its designee (rather than Indenture Trustee or Owner Trustee) is hereby authorized and empowered to do any of the following:
(i) to instruct Indenture Trustee to make deposits into withdrawals from the Collection Account and any Series Account, as set forth in this Agreement, the Indenture or any Indenture Supplement, (ii) to instruct the Indenture Trustee or the Owner Trustee to make withdrawals and payments from the Collection Account, the Excess Funding Account and any Series Account Accounts in accordance with such instructions as set forth in this Agreement, the Indenture or any Indenture Supplement, (iii) to instruct Indenture Trustee in writing as provided herein, (iv) to take any action required or permitted under any Enhancement, as set forth in this Agreement, the Indenture or any Indenture Supplement and, in connection with the foregoing, perform all calculations and (including any allocations of funds and other amounts) required to be performed by the Servicer as provided in this Agreement, the Indenture or any Indenture Supplement;
(iiv) to execute and deliver, on behalf of Issuer for the Issuerbenefit of the Noteholders, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the ReceivablesReceivables and, after the delinquency of any Receivable and to the extent permitted under and in compliance with Applicable Lawapplicable law and regulations, to commence enforcement proceedings with respect to such Receivables;
(iii) . Without limiting the generality of the foregoing and subject to Sections 4.1 and 4.2, Servicer or its designee is authorized and empowered to make any filings, reports, notices, applications, applications and registrations with, and to seek any consents or authorizations from, the Securities and Exchange Commission and any state securities authority on behalf of the Issuer as may be necessary or advisable to comply with any federal or state securities laws or reporting requirement; and
(iv) requirements. Indenture Trustee shall furnish Servicer with any powers of attorney or other documents necessary or appropriate to delegate certain of enable Servicer to carry out its servicing, collection, enforcement servicing and administrative duties under this Agreement with respect to the Accounts and the Receivables to any Person; provided, however, that no delegation will relieve the Servicer of its liability and responsibility with respect to such delegated dutieshereunder. The Indenture Trustee and the Owner Trustee will shall furnish the Servicer with any powers of attorney and other documents reasonably necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties under this Agreement.
(b) If the Depositor is unable for any reason to sell Receivables to the Issuer in accordance with the provisions of this Agreement, then the Servicer agrees (i) to give prompt notice of such inability to the Indenture Trustee, the Owner Trustee and each Rating Agency and (ii) after the occurrence of such event, to allocate Collections received in respect of each related Account in accordance with Section 2.5(b)hereunder.
(c) The Servicer will not, and any Successor Servicer will not, shall not be obligated to use separate servicing procedures, offices, employees or accounts for servicing the Receivables different from the procedures, offices, employees and accounts used by it Servicer in connection with servicing other floorplan credit card receivables.
(d) The Servicer will shall comply with and perform its servicing obligations with respect to the Accounts and Receivables in accordance with the related Floorplan Financing Account Agreements relating to the Accounts and the Floorplan Financing Guidelines, Account Guidelines except insofar as any failure to so comply or perform would not materially and adversely affect the rights of the Issuer or the Noteholders. Subject to compliance with Applicable Law, the Servicer may change the terms and provisions of any of the Floorplan Financing Agreements or the Floorplan Financing Guidelines in any respect (including the calculation of the amount or the timing of charge offs and the rate of interest charged on the Receivables), only if:
(i) as a result of such change, in the reasonable judgment of the Servicer, no Adverse Effect will occur;
(ii) such change is made applicable to all dealer floorplan accounts owned or serviced by the Servicer; and
(iii) in the case of a reduction in the rate of interest charged on the Receivables, the Servicer does not reasonably expect that the reduction will result in the Average Reference Rate for any Collection Period being less than the sum of (A) the weighted average of the Note Interest Rates plus (B) the applicable rate used to calculate the Servicing Fee and the Back-up Servicing Fee, whether or not they are then payable, for the related Interest Period (each such term as defined in the related Indenture Supplement). For purposes of clause (iii) above, so long as the Reference Rate is based on the prime rate of one or more banks (which bank or banks may change from time to time), decreases in the Reference Rate will not be deemed to be a reduction in the rate of interest charged on the Receivables; provided that a decrease in the margin used to determine the interest charged on the Receivables would be deemed to be a reduction.
(e) On behalf Servicer shall be liable for the payment, without reimbursement, of all expenses incurred in connection with Issuer and the servicing activities hereunder including expenses related to enforcement of the Issuer (Receivables, fees and disbursements of Owner Trustee that are due and payable to the extent it under Article VII of the Issuer’s interest in Trust Agreement, Indenture Trustee, the followingAdministrator, any Paying Agent and any Transfer Agent and Registrar (including the reasonable fees and expenses of its counsel), the Servicer agrees that it holds in trust any document in its possession or control evidencing or securing a Receivable fees and necessary for its servicing pursuant to this Agreementdisbursements of independent accountants and all other fees and expenses, including the documents provided to costs of filing UCC continuation statements and the Servicer pursuant to Section 2.5(h) costs and all other documents created by the Servicer in connection with its servicing pursuant to this Agreement, in each case, which documents may be in physical or electronic format. The Servicer acknowledges that it holds any documents expenses relating to obtaining and maintaining the Receivables listing of any Notes on any stock exchange, that are not expressly stated in this Agreement to be payable by Issuer, the Noteholders of a Series or Transferor (other than federal, state, local and foreign income, franchise and other taxes, if any, or any interest or penalties with respect thereto, assessed on Issuer).
(f) Servicer shall maintain fidelity bond or other appropriate insurance coverage insuring against losses through wrongdoing of its possession or control officers and employees who are involved in the servicing of credit card receivables covering such actions and in such amounts as agent and bailee and custodian for the use and benefit of the Indenture Trustee and the IssuerServicer believes to be reasonable from time to time.
Appears in 1 contract
Samples: Servicing Agreement (Bread Financial Holdings, Inc.)
Acceptance of Appointment and Other Matters Relating to Servicer. (a) The WFN is appointed, and agrees to act, as Servicer.
(b) Servicer will serviceshall service and administer the Receivables, manage, administer shall collect payments due under the Receivables and make collections on the shall charge off as uncollectible Receivables, all in accordance with its customary and usual servicing procedures for servicing dealer floorplan credit card and other consumer open end credit receivables comparable to the Receivables that the Servicer services for its own account or others and in accordance with the Floorplan Financing Credit Card Guidelines. The Servicer has shall have full power and authority, acting alone or through any party properly designated by it under this Agreementhereunder, to do any and all things in connection with such servicing and administration that which it may deem necessary or desirable. Without limiting the generality of the foregoing, the subject to Section 10.1 and provided WFN is Servicer, Servicer or its designee (rather than Trustee) is hereby authorized and empowered to do any of the following:
(i) to make deposits into the Collection Account withdrawals and payments or to instruct the Indenture Trustee or the Owner Trustee to make withdrawals and payments from the Collection Account, the Excess Funding Account and any Series Account Account, as set forth in this Agreement, the Indenture Agreement or any Indenture Supplement andSupplement, in connection with the foregoing, perform all calculations (including any allocations of funds and other amounts) required to be performed by the Servicer as provided in this Agreement, the Indenture or any Indenture Supplement;
(ii) to execute and delivertake any action required or permitted under any Enhancement, on behalf as set forth in this Agreement or any Supplement. Without limiting the generality of the Issuerforegoing and subject to Section 10.1, any Servicer or its designee is authorized and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the Receivables, after the delinquency of any Receivable and to the extent permitted under and in compliance with Applicable Law, to commence enforcement proceedings with respect to such Receivables;
(iii) empowered to make any filings, reports, notices, applications, applications and registrations with, and to seek any consents or authorizations from, the Securities and Exchange Commission and any state securities authority on behalf of the Issuer Trust as may be necessary or advisable to comply with any federal Federal or state securities laws or reporting requirement; and
(iv) to delegate certain of its servicing, collection, enforcement and administrative duties under this Agreement with respect to the Accounts and the Receivables to any Person; provided, however, that no delegation will relieve the Servicer of its liability and responsibility with respect to such delegated dutiesrequirements. The Indenture Trustee and the Owner Trustee will shall furnish the Servicer with any powers of attorney and or other documents reasonably necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties under this Agreement.
(b) If the Depositor is unable for any reason to sell Receivables to the Issuer in accordance with the provisions of this Agreement, then the Servicer agrees (i) to give prompt notice of such inability to the Indenture Trustee, the Owner Trustee and each Rating Agency and (ii) after the occurrence of such event, to allocate Collections received in respect of each related Account in accordance with Section 2.5(b)hereunder.
(c) The Servicer will not, and any Successor Servicer will not, shall not be obligated to use separate servicing procedures, offices, employees or accounts for servicing the Receivables different from the procedures, offices, employees and accounts used by it Servicer in connection with servicing other floorplan credit card receivables.
(d) The Servicer will shall comply with and perform its servicing obligations with respect to the Accounts and Receivables in accordance with the related Floorplan Financing Credit Card Agreements relating to the Accounts and the Floorplan Financing Guidelines, Credit Card Guidelines except insofar as any failure to so comply or perform would not materially and adversely affect the rights of the Issuer Trust or the Noteholders. Subject to compliance with Applicable Law, the Servicer may change the terms and provisions of any of the Floorplan Financing Agreements or the Floorplan Financing Guidelines in any respect (including the calculation of the amount or the timing of charge offs and the rate of interest charged on the Receivables), only if:
(i) as a result of such change, in the reasonable judgment of the Servicer, no Adverse Effect will occur;
(ii) such change is made applicable to all dealer floorplan accounts owned or serviced by the Servicer; and
(iii) in the case of a reduction in the rate of interest charged on the Receivables, the Servicer does not reasonably expect that the reduction will result in the Average Reference Rate for any Collection Period being less than the sum of (A) the weighted average of the Note Interest Rates plus (B) the applicable rate used to calculate the Servicing Fee and the Back-up Servicing Fee, whether or not they are then payable, for the related Interest Period (each such term as defined in the related Indenture Supplement). For purposes of clause (iii) above, so long as the Reference Rate is based on the prime rate of one or more banks (which bank or banks may change from time to time), decreases in the Reference Rate will not be deemed to be a reduction in the rate of interest charged on the Receivables; provided that a decrease in the margin used to determine the interest charged on the Receivables would be deemed to be a reductionInvestor Holders.
(e) On behalf Servicer shall be liable for the payment, without reimbursement, of all expenses incurred in connection with the Trust and the servicing activities hereunder including expenses related to enforcement of the Issuer Receivables, fees and disbursements of Trustee, any Paying Agent and any Transfer Agent and Registrar (to including the extent reasonable fees and expenses of the Issuer’s interest its counsel) in the following)accordance with Section 11.5, the Servicer agrees that it holds in trust any document in its possession or control evidencing or securing a Receivable fees and necessary for its servicing pursuant to this Agreementdisbursements of independent accountants and all other fees and expenses, including the documents provided costs of filing UCC continuation statements and the costs and expenses relating to obtaining and maintaining the Servicer pursuant listing of any Investor Certificates on any stock exchange, that are not expressly stated in this Agreement to Section 2.5(h) and all other documents created be payable by the Servicer in connection Trust, the Investor Holders of a Series or Transferor (other than Federal, state, local and foreign income, franchise and other taxes, if any, or any interest or penalties with its servicing pursuant to this Agreementrespect thereto, in each case, which documents may be in physical or electronic format. The Servicer acknowledges that it holds any documents relating to assessed on the Receivables in its possession or control as agent and bailee and custodian for the use and benefit of the Indenture Trustee and the IssuerTrust).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Alliance Data Systems Corp)
Acceptance of Appointment and Other Matters Relating to Servicer. (a) The SSCE agrees to act, and is hereby appointed by Funding LLC to act, as Servicer will serviceunder this Agreement, manage, administer and make collections on SRC hereby consents to SSCE’s acting as Servicer. Servicer shall supervise the Receivables, all servicing and administration of the Transferred Receivables and shall supervise the collection of payments due under the Transferred Receivables in accordance with (i) prudent standards and its customary and usual servicing procedures for servicing dealer floorplan receivables owned by it and comparable to the Transferred Receivables that the Servicer services for its own account or others and in accordance with the Floorplan Financing Guidelines. The Credit and Collection Policy and (ii) the standard set forth in clause (ii) of the definition of “Eligible Servicer” in Annex A to the Indenture (which standard Servicer has represents is not inconsistent with the standard set forth in clause (i) above) and shall have full power and authority, acting alone or through any party properly designated by it under this Agreement, authority to do any and all things in connection with such servicing and administration that which it may deem necessary or desirable; provided, however, that if SSCE is no longer the “Servicer” hereunder, the entity that is acting as Servicer at such time shall service the Transferred Receivables in accordance with the standards that would be employed by a prudent institution in servicing comparable receivables for its own account. Without limiting Servicer will be responsible on a daily basis for servicing, managing and accepting or collecting payments on the generality Transferred Receivables; provided, however, that Servicer will hold such collections in trust for the benefit of the foregoingNoteholders. Additional servicing activities performed by Servicer with respect to the Transferred Receivables shall include collecting and recording payments, the communicating with Obligors, investigating payment delinquencies, providing billing records to Obligors and maintaining internal records. Managerial and custodial services performed by Servicer is authorized and empowered to do shall include providing assistance in any inspections of the following:
(i) documents and records relating to make deposits into the Collection Account and to instruct Transferred Receivables by Funding LLC or the Indenture Trustee or to the Owner Trustee to make withdrawals and payments from the Collection Account, the Excess Funding Account and any Series Account as set forth extent provided in this Agreement, maintaining the agreements, documents and files relating to the Transferred Receivables as custodian and providing related data processing and reporting services for Noteholders and on behalf of the Indenture or any Indenture Supplement and, in connection with Trustee to the foregoing, perform all calculations (including any allocations of funds and other amounts) required to be performed by the Servicer as extent provided in this Agreement, the Indenture or any Indenture Supplement;
. Without limiting the generality of the foregoing, Servicer is hereby authorized and empowered (i) to instruct the Indenture Trustee to make withdrawals and payments from the Collection Account and the Series Accounts and any other applicable account established pursuant to this Agreement, the Indenture or any Indenture Supplement, as set forth in this Agreement and the Indenture or any related Indenture Supplement, (ii) to execute and deliver, on behalf of the IssuerIndenture Trustee for the benefit of the Noteholders, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the ReceivablesTransferred Receivables and, after the delinquency of any Transferred Receivable and to the extent permitted under and in compliance with Applicable Lawapplicable law and regulations, to commence enforcement proceedings with respect to such Receivables;
Transferred Receivable, and (iii) to make any filings, reports, notices, applications, registrations with, and to seek any consents consent or authorizations from, the Securities and Exchange Commission and any state securities authority on behalf of the Issuer Funding LLC as may be necessary or advisable to comply with any federal or state securities laws or reporting requirement; and
(iv) to delegate certain of its servicing, collection, enforcement and administrative duties under this Agreement with respect to the Accounts and the Receivables to any Person; provided, however, that no delegation will relieve the Servicer of its liability and responsibility with respect to such delegated duties. The Indenture Trustee and the Owner Trustee will furnish the Servicer with any powers of attorney and other documents reasonably necessary requirements or appropriate to enable the Servicer to carry out its duties under this Agreementlaws.
(b) Servicer shall not, and no Successor Servicer shall, be obligated to use separate servicing procedures (except as may be specified herein), offices or employees for servicing the Transferred Receivables from the procedures, offices or employees used by Servicer or such Successor Servicer, as the case may be, in connection with servicing other receivables of the same type.
(c) Servicer shall, on behalf of Funding LLC, the Indenture Trustee and the Noteholders, enforce their respective rights and interest in and under the Transferred Receivables and the related Contracts. If SSCE is no longer the Depositor “Servicer” hereunder, SSCE shall promptly deliver to the entity that is acting as Servicer at such time, at SSCE’s expense, and Servicer shall hold in trust for Funding LLC, the Indenture Trustee and the Noteholders in accordance with their respective interests, all books and records, files, documents, instruments and records (including, without limitation, computer tapes or disks and microfiche lists) that evidence or relate to Transferred Receivables.
(d) In the event that SRC is unable for any reason to sell transfer Receivables to the Issuer Funding LLC in accordance with the provisions of this AgreementAgreement (including, then the Servicer agrees (i) to give prompt notice without limitation, by reason of such inability any court of competent jurisdiction ordering that Funding LLC not transfer any additional Receivables to the Indenture Trustee) then, in any such event, Servicer agrees to allocate and pay to Funding LLC (or to the Owner Indenture Trustee and each Rating Agency and (ii) on behalf of the Noteholders), after the date of such inability, all Collections with respect to Receivables transferred to Funding LLC prior to the occurrence of such event, to allocate Collections received in respect of each related Account in accordance with Section 2.5(b).
(c) The Servicer will not, and any Successor Servicer will not, be obligated to use servicing procedures, offices, employees or accounts for servicing the Receivables different from the procedures, offices, employees and accounts used by it in connection with servicing other floorplan receivables.
(d) The Servicer will comply with and perform its servicing obligations with respect to the Accounts and Receivables in accordance with the related Floorplan Financing Agreements and the Floorplan Financing Guidelines, except insofar as any failure to so comply or perform would not materially and adversely affect the rights of the Issuer or the Noteholders. Subject to compliance with Applicable Law, the Servicer may change the terms and provisions of any of the Floorplan Financing Agreements or the Floorplan Financing Guidelines in any respect (including the calculation of the amount or the timing of charge offs and the rate of interest charged on the Receivables), only if:
(i) as a result of such change, in the reasonable judgment of the Servicer, no Adverse Effect will occur;
(ii) such change is made applicable to all dealer floorplan accounts owned or serviced by the Servicer; and
(iii) in the case of a reduction in the rate of interest charged on the Receivables, the Servicer does not reasonably expect that the reduction will result in the Average Reference Rate for any Collection Period being less than the sum of (A) the weighted average of the Note Interest Rates plus (B) the applicable rate used to calculate the Servicing Fee and the Back-up Servicing Fee, whether or not they are then payable, for the related Interest Period (each such term as defined in the related Indenture Supplement). For purposes of clause (iii) above, so long as the Reference Rate is based on the prime rate of one or more banks (which bank or banks may change from time to time), decreases in the Reference Rate will not be deemed to be a reduction in the rate of interest charged on the Receivables; provided that a decrease in the margin used to determine the interest charged on the Receivables would be deemed to be a reduction.
(e) On behalf Obligors shall be instructed by Servicer to make all payments on the Transferred Receivables to Lock-Box Accounts maintained by Lock-Box Banks pursuant to Lock-Box Agreements; provided, however, that if, notwithstanding instructions to the contrary given to any Obligor, Collections from such Obligor are received by Servicer, such Collections shall be deposited in the Collection Account by Servicer immediately upon receipt of such funds (and in no event later than 1 Business Day after receipt); provided further, that Servicer shall not be considered in breach of the Issuer (obligation set forth in this sentence to the extent of that a payment received by Servicer is not so deposited because such payment relates to a Disputed Item. On each Business Day, Servicer shall transfer, or cause to be transferred, to the Issuer’s interest Collection Account all Collections received in the following)Lock-Box Accounts that have not been previously transferred.
(f) Servicer or, in the Servicer agrees event that it holds there is a Successor Servicer, such Successor Servicer, shall have the power revocable by the Indenture Trustee to instruct each Lock-Box Bank to make withdrawals from the Lock-Box Accounts in trust any document in its possession or control evidencing or securing a Receivable and necessary for its servicing pursuant to accordance with this Agreement, including the documents provided Indenture or any applicable Indenture Supplement. All Collections on Transferred Receivables of amounts due and owing will, pending instructions by Servicer for transfer to the Servicer pursuant to Section 2.5(h) and all other documents created Collection Account, be deposited in or held in the Lock-Box Account by the Servicer in connection with its servicing pursuant to this Agreement, in each case, which documents may be in physical or electronic format. The Servicer acknowledges that it holds any documents relating to the Receivables in its possession or control as agent and bailee and custodian for the use and benefit name of the Indenture Trustee and shall be remitted to the IssuerCollection Account not later than one Business Day after such deposits become available funds; provided, however, that Servicer shall not be considered in breach of the obligation set forth in this sentence to the extent that a payment received by Servicer is not so deposited because such payment relates to a Disputed Item.
(g) Servicer hereby agrees that all Collections and other proceeds received in respect of Transferred Receivables shall be applied to reduce the Unpaid Balance of the oldest outstanding Transferred Receivables of the Obligor to whom such Collections are attributable until such Transferred Receivables are paid in full; provided, however that notwithstanding the foregoing, if Servicer can attribute a Collection to a specific Obligor and a specific Transferred Receivable, then such Collection shall be applied to pay such Transferred Receivable of such Obligor.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Smurfit-Stone Container Enterprises Inc)
Acceptance of Appointment and Other Matters Relating to Servicer. (a) The Servicer will service, manage, administer and make collections on the Receivables, all in accordance with its customary and usual servicing procedures for servicing dealer floorplan receivables comparable to the Receivables that the Servicer services for its own account or others and others, in accordance with the Floorplan Financing Agreements and in accordance with the applicable Floorplan Financing Guidelines, except where the failure to comply with the Floorplan Financing Agreements and the Floorplan Financing Guidelines will not materially and adversely affect the rights of the Issuer, the Noteholders or any Series Enhancer. The Servicer has full power and authority, acting alone or through any party properly designated by it under this Agreementhereunder, to do any and all things in connection with such servicing and administration that it may deem necessary or desirable. Without limiting the generality of the foregoingforegoing and subject to Section 6.01, the Servicer is hereby authorized and empowered empowered, unless such power and authority is revoked by the Indenture Trustee upon the occurrence of a Servicer Default pursuant to Section 6.01, to do any of the following:
(i) to make deposits into the Collection Account and to instruct the Indenture Trustee in writing or the Owner Trustee to make withdrawals and payments from the Collection Account, the Excess Funding Account and any Series Account as set forth in this Agreement, the Indenture or any Indenture Supplement and, in connection with the foregoingtherewith, perform all calculations (including any allocations of funds and other amounts) required to be performed by the Servicer as provided in this Agreement, the Indenture or any Indenture Supplement;
(ii) to instruct the Indenture Trustee in writing or the Owner Trustee to take any action required or permitted under any Series Enhancement;
(iii) to execute and deliver, on behalf of the Issuer, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the ReceivablesReceivables and, after the delinquency of any Receivable and to the extent permitted under and in compliance with Applicable applicable Requirements of Law, to commence enforcement proceedings with respect to such Receivables;
(iiiiv) to make any filings, reports, notices, applications, registrations with, and seek any consents or authorizations from, the Securities and Exchange Commission and any state securities authority on behalf of the Issuer as may be necessary or advisable to comply with any federal or state securities laws or reporting requirement; and;
(ivv) to delegate certain of its servicing, collection, enforcement and administrative duties under this Agreement hereunder with respect to the Accounts and the Receivables to any PersonPerson who agrees to conduct such duties in accordance with the applicable Floorplan Financing Guidelines and this Agreement; provided, however, that the Servicer will notify the Indenture Trustee, the Owner Trustee, each Rating Agency and any Series Enhancers in writing of any such delegation other than in the ordinary course of its business or to a Person that is not one of the Servicer's Affiliates; and, provided further, that no delegation will relieve the Servicer of its liability and responsibility with respect to such delegated dutiesduties and will not constitute a resignation within the meaning of Section 5.05; and
(vi) to execute and deliver any filings, certificates, affidavits or other instruments required under the Xxxxxxxx-Xxxxx Act of 2002, to the extent permitted by applicable law. The Indenture Trustee and the Owner Trustee will furnish the Servicer with any powers of attorney and other documents reasonably necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties under this Agreementhereunder.
(b) If the Depositor Transferor is unable for any reason to sell transfer Receivables to the Issuer in accordance with the provisions of this AgreementAgreement then, then in any such event, the Servicer agrees (i) to give prompt written notice of such inability thereof to the Indenture Trustee, the Owner Trustee and each Rating Agency Trustee, any Series Enhancers and (ii) after the occurrence of such event, to allocate Collections received (on a "first in, first out" basis) in respect of each related Account in accordance a manner consistent with Section 2.5(b2.05(b).
(c) The Servicer will not, and any Successor Servicer will not, be obligated to use servicing procedures, offices, employees or accounts for servicing the Receivables different from the procedures, offices, employees and accounts used by it the Servicer in connection with servicing other floorplan receivables.
(d) The Servicer will comply with and perform its servicing obligations with respect to the Accounts and Receivables in accordance with the related applicable Floorplan Financing Agreements relating to the Accounts and the applicable Floorplan Financing Guidelines, except insofar as any failure to so comply or perform would not materially and adversely affect the rights of the Issuer or the NoteholdersNoteholders and any Series Enhancers. Subject to compliance with Applicable all Requirements of Law, the Servicer may change the terms and provisions of any of the Floorplan Financing Agreements or the its Floorplan Financing Guidelines in any respect (including the calculation of the amount or the timing of charge charge-offs and the rate of the interest charged on the Receivablescharge assessed thereon), only if:
(i) as a result of such change, in the reasonable judgment of the Servicer, no Adverse Effect Early Amortization Event will occuroccur at any time and none of the Series Enhancers, if any, or the Noteholders will be adversely affected;
(ii) such change is made applicable to all dealer the comparable segment of floorplan accounts owned or serviced by the ServicerServicer that have characteristics the same as, or substantially similar to, the Accounts that are the subject of such change; and
(iii) in the case of a reduction in the rate of such interest charged on the Receivablescharges, the Servicer does not reasonably expect that the any such reduction will to result in the Average weighted average of the Reference Rate Rates applicable to the Receivables (net of the applicable rate used to calculate the Servicing Fee) for any Collection Period being less than the sum of (A) the weighted average of the sum of the Note Interest Rates plus (Bin the case of a Series with a fixed Note Interest Rate and a swap agreement, the floating rate payable by the Issuer under the swap agreement) and the applicable rate used to calculate the Servicing Fee and the Back-up Servicing Fee, whether or not they are then payable, for the related Interest Period (each such term as defined in the related Indenture Supplement). For purposes of clause (iii) aboveof the preceding sentence, so long as the Reference Rate is based on the prime rate of one or more banks (which bank or banks may change from time to time), decreases downward fluctuations in the Reference Rate will not be deemed to be a reduction in the rate of such interest charged on the Receivablescharges; provided that a decrease reduction in the margin used added to such Reference Rate to determine the interest charged on the Receivables charge would be deemed to be a reductionreduction in such interest charge.
(e) On behalf of the Issuer (to the extent of the Issuer’s interest in the following), the Servicer agrees that it holds in trust any document in its possession or control evidencing or securing a Receivable and necessary for its servicing pursuant to this Agreement, including the documents provided to the Servicer pursuant to Section 2.5(h) and all other documents created by the Servicer in connection with its servicing pursuant to this Agreement, in each case, which documents may be in physical or electronic format. The Servicer acknowledges that it holds any documents relating to the Receivables in its possession or control as agent and bailee and custodian for the use and benefit of the Indenture Trustee and the Issuer.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Nissan Wholesale Receivables Corp Ii)
Acceptance of Appointment and Other Matters Relating to Servicer. (a) The Servicer will service, manage, administer and make collections on the Receivables, all in accordance with its customary and usual servicing procedures for servicing dealer floorplan receivables comparable to the Receivables that the Servicer services for its own account or others and others, in accordance with the Floorplan Financing Agreements and in accordance with the applicable Floorplan Financing Guidelines, except where the failure to comply with the Floorplan Financing Agreements and the Floorplan Financing Guidelines will not materially and adversely affect the rights or interests of the Issuer or the Noteholders. The Servicer has full power and authority, acting alone or through any party properly designated by it under this Agreementhereunder, to do any and all things in connection with such servicing and administration that it may deem necessary or desirable. Without limiting the generality of the foregoingforegoing and subject to Section 6.01, the Servicer is hereby authorized and empowered empowered, unless such power and authority is revoked by the Indenture Trustee upon the occurrence of a Servicer Termination Event pursuant to do any Section 6.01, to do, and the Servicer shall do, each of the following:
(i) to make deposits into the Collection Account and to instruct the Indenture Trustee or the Owner Trustee to make withdrawals and payments from the Collection Account, the Excess Funding Account and any Series Account as set forth in this Agreement, the Indenture or any Indenture Supplement and, in connection with the foregoingtherewith, perform all calculations (including any allocations of funds and other amounts) required to be performed by the Servicer as provided in this Agreement, the Indenture or any Indenture Supplement;
(ii) to execute and deliver, on behalf of the Issuer, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the ReceivablesReceivables and, after the delinquency of any Receivable and to the extent permitted under and in compliance with Applicable applicable Requirements of Law, to commence enforcement proceedings with respect to such Receivables;
(iii) to make any filings, reports, notices, applications, registrations with, and seek any consents or authorizations from, the Securities and Exchange Commission and any state securities authority on behalf of the Issuer as may be necessary or advisable to comply with any federal or state securities laws or reporting requirement; and
(iv) to delegate certain execute and deliver any filings, certificates, affidavits or other instruments required under the Xxxxxxxx-Xxxxx Act of its servicing2002, collection, enforcement and administrative duties under this Agreement with respect to the Accounts and the Receivables to any Person; provided, however, that no delegation will relieve the Servicer of its liability and responsibility with respect to such delegated dutiesextent permitted by Applicable Law. The Indenture Trustee and Issuer, the Owner Trustee and, at the written request of the Servicer, the Indenture Trustee will furnish the Servicer with any powers of attorney and other documents reasonably necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties under this Agreementhereunder.
(b) If the Depositor Transferor is unable for any reason to sell transfer Receivables to the Issuer in accordance with the provisions of this AgreementAgreement then, then in any such event, the Servicer agrees (i) to give prompt written notice of such inability thereof to the Indenture Trustee, the Owner Trustee and each Rating Agency the Issuer and (ii) after the occurrence of such event, to allocate Collections received (on a “first in, first out” basis) in respect of each related Account in accordance a manner consistent with Section 2.5(b2.05(b).
(c) The Servicer will not, and any Successor Servicer will not, not be obligated to use servicing procedures, offices, employees or accounts for servicing the Receivables different from the procedures, offices, employees and accounts used by it the Servicer in connection with servicing other floorplan receivables.
(d) The Servicer will comply with and perform its servicing obligations with respect the applicable Floorplan Financing Agreements relating to the Accounts and Receivables in accordance with the related Floorplan Financing Agreements and the applicable Floorplan Financing Guidelines, except insofar as any failure to so comply or perform would not materially and adversely affect the rights or interests of the Issuer or the Noteholders. Subject to compliance with Applicable all Requirements of Law, the Servicer may change the terms and provisions of any of the Floorplan Financing Agreements (including the reference rate and the spread over the reference rate upon which interest on the Receivables is calculated) or the its Floorplan Financing Guidelines in any respect (including in accordance with the calculation of the amount or the timing of charge offs terms thereof and the rate of interest charged on the Receivables), only if:
(i) as a result of such change, in the reasonable judgment of the Servicer, no Adverse Effect will occur;
(ii) such change is made applicable to all dealer floorplan accounts owned or serviced by the Servicer; and
(iii) in the case of a reduction in the rate of interest charged on the Receivables, the Servicer does not reasonably expect that the reduction will result in the Average Reference Rate for any Collection Period being less than the sum of (A) the weighted average of the Note Interest Rates plus (B) the applicable rate used to calculate the Servicing Fee and the Back-up Servicing Fee, whether or not they are then payable, for the related Interest Period (each such term as defined in the related Indenture Supplement). For purposes of clause (iii) above, so long as the Reference Rate is based on the prime rate of one or more banks (which bank or banks may change from time to time), decreases in the Reference Rate will not be deemed to be a reduction in the rate of interest charged on the Receivables; provided that a decrease in the margin used to determine the interest charged on the Receivables would be deemed to be a reductionits customary servicing practices.
(e) On behalf of The Servicer hereby agrees to perform the Issuer (obligations and actions referred to the extent of the Issuer’s interest in the following)Indenture, the Servicer agrees that it holds in trust any document in its possession Indenture Supplement or control evidencing any other Basic Document as being performed or securing a Receivable and necessary for its servicing pursuant to this Agreement, including the documents provided to the Servicer pursuant to Section 2.5(h) and all other documents created taken by the Servicer in connection with its servicing pursuant to this Agreement, in each case, which documents may be in physical or electronic format. The Servicer acknowledges that it holds any documents relating to the Receivables in its possession or control as agent and bailee and custodian for the use and benefit of the Indenture Trustee and the IssuerServicer.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (GMF Floorplan Owner Revolving Trust)
Acceptance of Appointment and Other Matters Relating to Servicer. (a) The Servicer will service, manage, administer and make collections on the Receivables, all in accordance with its customary and usual servicing procedures for servicing dealer floorplan receivables comparable to the Receivables that the Servicer services for its own account or others others, in accordance with the Floorplan Financing Agreements and in accordance with the applicable Floorplan Financing Guidelines. The Servicer has full power and authority, acting alone or through any party properly designated by it under this Agreementhereunder, to do any and all things in connection with such servicing and administration that it may deem necessary or desirable. Without limiting the generality of the foregoingforegoing and subject to Section 6.01, the Servicer is hereby authorized and empowered empowered, unless such power and authority is revoked by the Indenture Trustee upon the occurrence of a Servicer Default pursuant to Section 6.01, to do any of the following:
(i) to make deposits into the Collection Account and to instruct the Indenture Trustee in writing or the Owner Trustee to make withdrawals and payments from the Collection Account, the Excess Funding Account and any Series Account as set forth in this Agreement, the Indenture or any Indenture Supplement and, in connection with the foregoingtherewith, perform all calculations (including any allocations of funds and other amounts) required to be performed by the Servicer as provided in this Agreement, the Indenture or any Indenture Supplement;
(ii) to instruct the Indenture Trustee in writing or the Owner Trustee to take any action required or permitted under any Series Enhancement;
(iii) to execute and deliver, on behalf of the Issuer, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the ReceivablesReceivables and, after the delinquency of any Receivable and to the extent permitted under and in compliance with Applicable applicable Requirements of Law, to commence enforcement proceedings with respect to such Receivables;
(iiiiv) to make any filings, reports, notices, applications, registrations with, and seek any consents or authorizations from, the Securities and Exchange Commission and any state securities authority on behalf of the Issuer as may be necessary or advisable to comply with any federal or state securities laws or reporting requirement; and;
(ivv) to delegate certain of its servicing, collection, enforcement and administrative duties under this Agreement hereunder with respect to the Accounts and the Receivables to any PersonPerson who agrees to conduct such duties in accordance with the applicable Floorplan Financing Guidelines and this Agreement; provided, however, that the Servicer will notify the Indenture Trustee, the Owner Trustee, the Rating Agencies and any Series Enhancers in writing of any such delegation other than in the ordinary course of its business or to a Person that is not one of the Servicer's Affiliates; and, provided further, that no delegation will relieve the Servicer of its liability and responsibility with respect to such delegated dutiesduties and will not constitute a resignation within the meaning of Section 5.05; and
(vi) to execute and deliver any filings, certificates, affidavits or other instruments required under the Sarbanes-Oxley Act of 2002, to the extent permitted by applicxxxx xxx. The Indenture Trustee and the Owner Trustee will furnish the Servicer with any powers of attorney and other documents reasonably necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties under this Agreementhereunder.
(b) If the Depositor Transferor is unable for any reason to sell transfer Receivables to the Issuer in accordance with the provisions of this AgreementAgreement then, then in any such event, the Servicer agrees (i) to give prompt written notice of such inability thereof to the Indenture Trustee, the Owner Trustee and each Rating Agency Trustee, any Series Enhancers and (ii) after the occurrence of such event, to allocate Collections received in respect of each related Account in accordance with Section 2.5(b2.05(b).
(c) The Servicer will not, and any Successor Servicer will not, be obligated to use servicing procedures, offices, employees or accounts for servicing the Receivables different from the procedures, offices, employees and accounts used by it the Servicer in connection with servicing other floorplan receivables.
(d) The Servicer will comply with and perform its servicing obligations with respect to the Accounts and Receivables in accordance with the related applicable Floorplan Financing Agreements relating to the Accounts and the applicable Floorplan Financing Guidelines, except insofar as any failure to so comply or perform would not materially and adversely affect the rights of the Issuer or the NoteholdersNoteholders and any Series Enhancers. Subject to compliance with Applicable all Requirements of Law, the Servicer may change the terms and provisions of any of the Floorplan Financing Agreements or the its Floorplan Financing Guidelines in any respect (including the calculation of the amount or the timing of charge charge-offs and the rate of the interest charged on the Receivablescharge assessed thereon), only if:
(i) as a result of such change, in the reasonable judgment of the Servicer, no Adverse Effect Early Amortization Event will occuroccur at any time and none of the Series Enhancers, if any, or the Noteholders will be adversely affected;
(ii) such change is made applicable to all dealer the comparable segment of floorplan accounts owned or serviced by the ServicerServicer that have characteristics the same as, or substantially similar to, the Accounts that are the subject of such change; and
(iii) in the case of a reduction in the rate of such interest charged on the Receivablescharges, the Servicer does not reasonably expect that the any such reduction will to result in the Average weighted average of the Reference Rate Rates applicable to the Receivables (net of the applicable rate used to calculate the Servicing Fee) for any Collection Period being less than the sum of (A) the weighted average of the sum of the Note Interest Rates plus (Bin the case of a Series with a fixed Note Interest Rate and a swap agreement, the floating rate payable by the Issuer under the swap agreement) and the applicable rate used to calculate the Servicing Fee and the Back-up Servicing Fee, whether or not they are then payable, for the related Interest Period (each such term as defined in the related Indenture Supplement). For purposes of clause (iii) aboveof the preceding sentence, so long as the Reference Rate is based on the prime rate of one or more banks (which bank or banks may change from time to time), decreases downward fluctuations in the Reference Rate will not be deemed to be a reduction in the rate of such interest charged on the Receivablescharges; provided that a decrease reduction in the margin used added to such Reference Rate to determine the interest charged on the Receivables charge would be deemed to be a reductionreduction in such interest charge.
(e) On behalf of the Issuer (to the extent of the Issuer’s interest in the following), the Servicer agrees that it holds in trust any document in its possession or control evidencing or securing a Receivable and necessary for its servicing pursuant to this Agreement, including the documents provided to the Servicer pursuant to Section 2.5(h) and all other documents created by the Servicer in connection with its servicing pursuant to this Agreement, in each case, which documents may be in physical or electronic format. The Servicer acknowledges that it holds any documents relating to the Receivables in its possession or control as agent and bailee and custodian for the use and benefit of the Indenture Trustee and the Issuer.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Nissan Wholesale Receivables Corp Ii)
Acceptance of Appointment and Other Matters Relating to Servicer. (a) The Servicer will service, manage, administer and make collections on the Receivables, all in accordance with its customary and usual servicing procedures for servicing dealer floorplan receivables comparable to the Receivables that the Servicer services for its own account or others and in accordance with the applicable Floorplan Financing Guidelines. The Servicer has full power and authority, acting alone or through any party properly designated by it under this Agreementhereunder, to do any and all things in connection with such servicing and administration that it may deem necessary or desirable. Without limiting the generality of the foregoingforegoing and subject to Section 6.01, the Servicer is hereby authorized and empowered empowered, unless such power and authority is revoked by the Indenture Trustee upon the occurrence of a Servicer Default pursuant to Section 6.01, to do any of the following:
(i) to make deposits into the Collection Account and to instruct the Indenture Trustee or the Owner Trustee to make withdrawals and payments from the Collection Account, the Excess Funding Account and any Series Account as set forth in this Agreement, the Indenture or any Indenture Supplement and, in connection with the foregoingtherewith, perform all calculations (including any allocations of funds and other amounts) required to be performed by the Servicer as provided in this Agreement, the Indenture or any Indenture Supplement;
(ii) to instruct the Indenture Trustee or the Owner Trustee to take any action required or permitted under any Series Enhancement;
(iii) to execute and deliver, on behalf of the Issuer, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the ReceivablesReceivables and, after the delinquency of any Receivable and to the extent permitted under and in compliance with Applicable applicable Requirements of Law, to commence enforcement proceedings with respect to such Receivables;
(iiiiv) to make any filings, reports, notices, applications, registrations with, and seek any consents or authorizations from, the Securities and Exchange Commission and any state securities authority on behalf of the Issuer as may be necessary or advisable to comply with any federal or state securities laws or reporting requirement; and
(ivv) to delegate certain of its servicing, collection, enforcement and administrative duties under this Agreement hereunder with respect to the Accounts and the Receivables to any PersonPerson who agrees to conduct such duties in accordance with the applicable Floorplan Financing Guidelines and this Agreement; provided, however, that the Servicer will notify the Indenture Trustee, the Owner Trustee, the Rating Agencies and any Series Enhancers in writing of any such delegation other than in the ordinary course of its business or to a Person that is not one of the Servicer's Affiliates; and, provided further, that no delegation will relieve the Servicer of its liability and responsibility with respect to such delegated dutiesduties and will not constitute a resignation within the meaning of Section 5.05. The Indenture Trustee and the Owner Trustee will furnish the Servicer with any powers of attorney and other documents reasonably necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties under this Agreementhereunder.
(b) If the Depositor Transferor is unable for any reason to sell transfer Receivables to the Issuer in accordance with the provisions of this AgreementAgreement then, then in any such event, the Servicer agrees (i) to give prompt written notice of such inability thereof to the Indenture Trustee, the Owner Trustee Trustee, any Series Enhancers and each Rating Agency and (ii) after the occurrence of such event, to allocate Collections received in respect of each related Account in accordance with Section 2.5(b2.05(ii).
(c) The Servicer will not, and any Successor Servicer will not, be obligated to use servicing procedures, offices, employees or accounts for servicing the Receivables different from the procedures, offices, employees and accounts used by it the Servicer in connection with servicing other floorplan receivables.
(d) The Servicer will comply with and perform its servicing obligations with respect to the Accounts and Receivables in accordance with the related applicable Floorplan Financing Agreements relating to the Accounts and the applicable Floorplan Financing Guidelines, except insofar as any failure to so comply or perform would not materially and adversely affect the rights of the Issuer or the NoteholdersNoteholders and any Series Enhancers. Subject to compliance with Applicable all Requirements of Law, the Servicer may change the terms and provisions of any of the Floorplan Financing Agreements or the its Floorplan Financing Guidelines in any respect (including the calculation of the amount or the timing of charge charge-offs and the rate of the interest charged on the Receivablescharge assessed thereon), only if:
(i) as a result of such change, in the reasonable judgment of the Servicer, no Adverse Effect Amortization Event will occuroccur at any time and none of the Series Enhancers, if any, or the Noteholders will be adversely affected;
(ii) such change is made applicable to all dealer the comparable segment of floorplan accounts owned or serviced by the ServicerServicer that have characteristics the same as, or substantially similar to, the Accounts that are the subject of such change; and
(iii) in the case of a reduction in the rate of such interest charged on the Receivablescharges, the Servicer does not reasonably expect that the any such reduction will to result in the Average weighted average of the Reference Rate Rates applicable to the Receivables (net of the applicable rate used to calculate the Servicing Fee) for any Collection Period being less than the sum of (A) the weighted average of the sum of the Note Interest Rates plus (Bin the case of a Series with a fixed Note Interest Rate and a swap agreement, the floating rate payable by the Issuer under the swap agreement) and the applicable rate used to calculate the Servicing Fee and the Back-up Servicing Fee, whether or not they are then payable, for the related Interest Period (each such term as defined in the related Indenture Supplement). For purposes of clause (iii) aboveof the preceding sentence, so long as the Reference Rate is based on the prime rate of one or more banks (which bank or banks may change from time to time), decreases downward fluctuations in the Reference Rate will not be deemed to be a reduction in the rate of such interest charged on the Receivablescharges; provided that a decrease reduction in the margin used added to such Reference Rate to determine the interest charged on the Receivables charge would be deemed to be a reductionreduction in such interest charge.
(e) On behalf of the Issuer (to the extent of the Issuer’s interest in the following), the Servicer agrees that it holds in trust any document in its possession or control evidencing or securing a Receivable and necessary for its servicing pursuant to this Agreement, including the documents provided to the Servicer pursuant to Section 2.5(h) and all other documents created by the Servicer in connection with its servicing pursuant to this Agreement, in each case, which documents may be in physical or electronic format. The Servicer acknowledges that it holds any documents relating to the Receivables in its possession or control as agent and bailee and custodian for the use and benefit of the Indenture Trustee and the Issuer.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Ford Credit Auto Receivables LLC)
Acceptance of Appointment and Other Matters Relating to Servicer. (a) In connection with and in consideration for the conveyance of the Dealer Notes and the other rights conveyed hereunder to the Issuing Entity, the Depositor, in its capacity as holder of the Certificates, agrees to cause NFC to act as Servicer under this Agreement and NFC agrees to act as Servicer under this Agreement. The Noteholders by their acceptance of the Notes consent to NFC acting as Servicer.
(b) The Servicer will serviceis hereby authorized in the name and on behalf of the Issuing Entity and the Depositor, manageand agrees, to service and administer the Dealer Notes and make collections on the Receivables, all collect payments due under such Dealer Notes in accordance with its customary and usual servicing procedures for servicing dealer floorplan receivables wholesale payment obligations comparable to the Receivables that the Servicer services for its own account or others Dealer Notes and in accordance with the Floorplan Financing Credit Guidelines. The Servicer has full power and authorityServicer, acting alone or through any party properly designated by it under this Agreementpursuant to Section 7.07, to shall do any and all things in connection with such servicing and administration that which it may deem necessary or desirable. Without limiting the generality of the foregoingforegoing and subject to Section 9.01, the Servicer is hereby authorized and empowered to do any of the following:
empowered, (i) to make deposits into unless such power and authority is revoked by the Collection Account and Indenture Trustee, to instruct the Indenture Trustee or the Owner Trustee to make withdrawals and payments from the Collection Collections Account, the Excess Funding Account, the Servicer Transition Fee Account and any Series Supplemental Account as set forth in this Agreement, the Indenture or any Indenture Supplement andSupplement, in connection with the foregoing, perform all calculations (including any allocations of funds and other amounts) required to be performed by the Servicer as provided in this Agreement, the Indenture or any Indenture Supplement;
(ii) to execute and deliver, on behalf of the IssuerIssuing Entity for the benefit of the Noteholders and the other Secured Parties (but in its own name, without reference to the fact that it is acting for the Issuing Entity), any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the ReceivablesDealer Notes and, after the delinquency of any Receivable such Dealer Notes and to the extent permitted under and in compliance with Applicable Lawapplicable law and regulations, to commence enforcement collection proceedings with respect to such Receivables;
Dealer Notes, (iii) to make any filings, reports, notices, applications, filings or registrations with, and to seek any consents or authorizations from, the Securities and Exchange Commission and any state securities authority of any jurisdiction on behalf of the Issuer Issuing Entity as may be necessary or advisable to comply with any federal or state the securities laws or reporting requirement; and
requirements laws of the United States or any state or other jurisdiction and (iv) to delegate certain of its servicing, collection, enforcement and administrative duties instruct the Indenture Trustee to take any action required or permitted under this Agreement with respect to the Accounts and the Receivables to any Person; provided, however, that no delegation will relieve the Servicer of its liability and responsibility with respect to such delegated dutiesEnhancement. The Indenture Trustee and the Owner Trustee will Issuing Entity shall furnish the Servicer with any powers of attorney and other documents reasonably as the Servicer may request necessary or appropriate under the laws of any jurisdiction with authority over the Dealer Notes to enable the Servicer to carry out its servicing and administrative duties under this Agreement.
(b) If the Depositor is unable for any reason to sell Receivables to the Issuer in accordance with the provisions of this Agreement, then the Servicer agrees (i) to give prompt notice of such inability to the Indenture Trustee, the Owner Trustee and each Rating Agency and (ii) after the occurrence of such event, to allocate Collections received in respect of each related Account in accordance with Section 2.5(b)hereunder.
(c) The Servicer will not, and any Successor Servicer will not, shall under no circumstances be obligated to use servicing procedures, offices, employees or accounts for servicing the Receivables different Dealer Notes separate from the procedures, offices, employees and accounts used by it the Servicer in connection with servicing other floorplan receivablesdealer notes.
(d) The Servicer will comply with and perform its servicing obligations with respect to the Accounts and Receivables in accordance with the related Floorplan Financing Agreements and the Floorplan Financing Guidelines, except insofar as any failure to so comply or perform would not materially and adversely affect the rights of the Issuer or the Noteholders. Subject to compliance with Applicable Law, the Servicer may change the terms and provisions of any of the Floorplan Financing Agreements or the Floorplan Financing Guidelines in any respect (including the calculation of the amount or the timing of charge offs and the rate of interest charged on the Receivables), only if:
(i) as a result of such change, in the reasonable judgment of the Servicer, no Adverse Effect will occur;
(ii) such change is made applicable to all dealer floorplan accounts owned or serviced by the Servicer; and
(iii) in the case of a reduction in the rate of interest charged on the Receivables, the Servicer does not reasonably expect that the reduction will result in the Average Reference Rate for any Collection Period being less than the sum of (A) the weighted average of the Note Interest Rates plus (B) the applicable rate used to calculate the Servicing Fee and the Back-up Servicing Fee, whether or not they are then payable, for the related Interest Period (each such term as defined in the related Indenture Supplement). For purposes of clause (iii) above, so long as the Reference Rate is based on the prime rate of one or more banks (which bank or banks may change from time to time), decreases in the Reference Rate will not be deemed to be a reduction in the rate of interest charged on the Receivables; provided that a decrease in the margin used to determine the interest charged on the Receivables would be deemed to be a reduction.
(e) On behalf of the Issuer (to the extent of the Issuer’s interest in the following), the Servicer agrees that it holds in trust any document in its possession or control evidencing or securing a Receivable and necessary for its servicing pursuant to this Agreement, including the documents provided to the Servicer pursuant to Section 2.5(h) and all other documents created by the Servicer in connection with its servicing pursuant to this Agreement, in each case, which documents may be in physical or electronic format. The Servicer acknowledges that it holds any documents relating to the Receivables in its possession or control as agent and bailee and custodian for the use and benefit of the Indenture Trustee and the Issuer.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Navistar International Corp)
Acceptance of Appointment and Other Matters Relating to Servicer. (a) Flowers agrees to act, and is hereby appointed by Administrative Agent to act, subject to the terms hereof, as the Servicer for the Receivables under this Agreement. The Servicer will service, manage, administer and make collections on shall collect payments due under the Receivables, all Receivables in accordance with the standards that would be employed by the Servicer in servicing comparable receivables for its servicing procedures for servicing dealer floorplan receivables own account and comparable to the Receivables that the Servicer services for its own account or others and in accordance with the Floorplan Financing Guidelines. The Servicer has Credit and Collection Policy and shall have full power and authority, acting alone or through any party properly designated by it under this Agreementhereunder, to do any and all things in connection with such servicing and administration that which it may deem necessary or desirable. .
(b) Without limiting the generality of the foregoingforegoing and subject to the provisions of the Priority of Payments and of Section 7.10, the Servicer is hereby authorized and empowered to do any of the following:
(i) to make deposits into receive and hold in trust for the Collection Account Borrower and to instruct the Indenture Trustee or the Owner Trustee to make withdrawals and payments its assigns, Collections received from the Collection Account, the Excess Funding Account Receivables and any Series Account as set forth in this Agreement, the Indenture or any Indenture Supplement and, in connection with the foregoing, perform all calculations (including any allocations of funds and other amounts) required to be performed by the Servicer as provided in this Agreement, the Indenture or any Indenture Supplement;
(ii) to execute and deliver, on behalf of the IssuerBorrower, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the Receivables, after the delinquency of any Receivable and to the extent Receivables permitted under and in compliance with Applicable applicable Law. To the extent Collections are transferred to or otherwise received by the Servicer, the Servicer shall, and is hereby authorized and empowered to, transfer or cause to be transferred, all such Collections to the related Collection Account and/or the Concentration Account or, if specified in this Agreement, to commence enforcement proceedings with respect an account designated by the Administrative Agent, as soon as practicable, but in no event later than two Business Days after initial receipt thereof, in each case to such Receivables;
(iii) to make any filings, reports, notices, applications, registrations with, be allocated and seek any consents or authorizations from, the Securities and Exchange Commission and any state securities authority on behalf of the Issuer distributed as may be necessary or advisable to comply with any federal or state securities laws or reporting requirement; and
(iv) to delegate certain of its servicing, collection, enforcement and administrative duties under this Agreement with respect to the Accounts and the Receivables to any Person; provided, however, that no delegation will relieve the Servicer of its liability and responsibility with respect to such delegated duties. The Indenture Trustee and the Owner Trustee will furnish the Servicer with any powers of attorney and other documents reasonably necessary or appropriate to enable the Servicer to carry out its duties under provided in this Agreement.
(b) If the Depositor is unable for any reason to sell Receivables to the Issuer in accordance with the provisions of this Agreement, then the Servicer agrees (i) to give prompt notice of such inability to the Indenture Trustee, the Owner Trustee and each Rating Agency and (ii) after the occurrence of such event, to allocate Collections received in respect of each related Account in accordance with Section 2.5(b).
(c) The Servicer will not, and any Successor Servicer will not, be obligated to use servicing procedures, offices, employees or accounts for servicing the Receivables different from the procedures, offices, employees and accounts used by it in connection with servicing other floorplan receivables.
(d) The Servicer will comply with and perform its servicing obligations with respect to the Accounts and Receivables in accordance with the related Floorplan Financing Agreements and the Floorplan Financing Guidelines, except insofar as any failure to so comply or perform would not materially and adversely affect the rights of the Issuer or the Noteholders. Subject to compliance with Applicable Law, the Servicer may change the terms and provisions of any of the Floorplan Financing Agreements or the Floorplan Financing Guidelines in any respect (including the calculation of the amount or the timing of charge offs and the rate of interest charged on the Receivables), only if:
(i) as a result of such change, in the reasonable judgment of the Servicer, no Adverse Effect will occur;
(ii) such change is made applicable to all dealer floorplan accounts owned or serviced by the Servicer; and
(iii) in the case of a reduction in the rate of interest charged on the Receivables, the Servicer does not reasonably expect that the reduction will result in the Average Reference Rate for any Collection Period being less than the sum of (A) the weighted average of the Note Interest Rates plus (B) the applicable rate used to calculate the Servicing Fee and the Back-up Servicing Fee, whether or not they are then payable, for the related Interest Period (each such term as defined in the related Indenture Supplement). For purposes of clause (iii) above, so long as the Reference Rate is based on the prime rate of one or more banks (which bank or banks may change from time to time), decreases in the Reference Rate will not be deemed to be a reduction in the rate of interest charged on the Receivables; provided that a decrease in the margin used to determine the interest charged on the Receivables would be deemed to be a reduction.
(e) On behalf of the Issuer (to the extent of the Issuer’s interest in the following), the Servicer agrees that it holds in trust any document in its possession or control evidencing or securing a Receivable and necessary for its servicing pursuant to this Agreement, including the documents provided to the Servicer pursuant to Section 2.5(h) and all other documents created by the Servicer in connection with its servicing pursuant to this Agreement, in each case, which documents may be in physical or electronic format. The Servicer acknowledges that it holds any documents relating to the Receivables in its possession or control as agent and bailee and custodian for the use and benefit of the Indenture Trustee and the Issuer.
Appears in 1 contract
Samples: Receivables Loan, Security and Servicing Agreement (Flowers Foods Inc)
Acceptance of Appointment and Other Matters Relating to Servicer. (a) WFN agrees to act as Servicer under this Agreement. The Noteholders by their acceptance of the Notes consent to WFN acting as Servicer.
(b) Subject to the provisions of this Agreement, Servicer will serviceshall service and administer the Receivables, manage, administer shall collect payments due under the Receivables and make collections on the shall charge off as uncollectible Receivables, all in accordance with its customary and usual servicing procedures for servicing dealer floorplan credit card and other consumer open end credit receivables comparable to the Receivables that the Servicer services for its own account or others and in accordance with the Floorplan Financing Credit Card Guidelines. The Servicer has shall have full power and authority, acting alone or through any party properly designated by it under this Agreementhereunder, to do any and all things in connection with such servicing and administration that which it may deem necessary or desirable. Without limiting the generality of the foregoing, the subject to SECTION 7.1, and provided WFN is Servicer, Servicer or its designee (rather than Indenture Trustee or Owner Trustee) is hereby authorized and empowered to do any of the following:
(i) to make deposits into withdrawals from the Collection Account and any Series Account, as set forth in this Agreement, the Indenture or any Indenture Supplement, (ii) to instruct the Indenture Trustee or the Owner Trustee to make withdrawals and payments from the Collection Account, the Excess Funding Account and any Series Account Accounts in accordance with such instructions as set forth in this Agreement, the Indenture or any Indenture Supplement, (iii) to instruct Indenture Trustee in writing as provided herein, (iv) to take any action required or permitted under any Enhancement, as set forth in this Agreement, the Indenture or any Indenture Supplement and, in connection with the foregoing, perform all calculations and (including any allocations of funds and other amounts) required to be performed by the Servicer as provided in this Agreement, the Indenture or any Indenture Supplement;
(iiv) to execute and deliver, on behalf of Issuer for the Issuerbenefit of the Noteholders, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the ReceivablesReceivables and, after the delinquency of any Receivable and to the extent permitted under and in compliance with Applicable Lawapplicable law and regulations, to commence enforcement proceedings with respect to such Receivables;
(iii) . Without limiting the generality of the foregoing and subject to SECTION 7.1, Servicer or its designee is authorized and empowered to make any filings, reports, notices, applications, applications and registrations with, and to seek any consents or authorizations from, the Securities and Exchange Commission and any state securities authority on behalf of the Issuer Trust as may be necessary or advisable to comply with any federal Federal or state securities laws or reporting requirement; and
(iv) requirements. Indenture Trustee shall furnish Servicer with any powers of attorney or other documents necessary or appropriate to delegate certain of enable Servicer to carry out its servicing, collection, enforcement servicing and administrative duties under this Agreement with respect to the Accounts and the Receivables to any Person; provided, however, that no delegation will relieve the Servicer of its liability and responsibility with respect to such delegated dutieshereunder. The Indenture Trustee and the Owner Trustee will shall furnish the Servicer with any powers of attorney and other documents reasonably necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties under this Agreement.
(b) If the Depositor is unable for any reason to sell Receivables to the Issuer in accordance with the provisions of this Agreement, then the Servicer agrees (i) to give prompt notice of such inability to the Indenture Trustee, the Owner Trustee and each Rating Agency and (ii) after the occurrence of such event, to allocate Collections received in respect of each related Account in accordance with Section 2.5(b)hereunder.
(c) The Servicer will not, and any Successor Servicer will not, shall not be obligated to use separate servicing procedures, offices, employees or accounts for servicing the Receivables different from the procedures, offices, employees and accounts used by it Servicer in connection with servicing other floorplan credit card receivables.
(d) The Servicer will shall comply with and perform its servicing obligations with respect to the Accounts and Receivables in accordance with the related Floorplan Financing Credit Card Agreements relating to the Accounts and the Floorplan Financing Guidelines, Credit Card Guidelines except insofar as any failure to so comply or perform would not materially and adversely affect the rights of the Issuer Trust or the Noteholders. Subject to compliance with Applicable Law, the Servicer may change the terms and provisions of any of the Floorplan Financing Agreements or the Floorplan Financing Guidelines in any respect (including the calculation of the amount or the timing of charge offs and the rate of interest charged on the Receivables), only if:
(i) as a result of such change, in the reasonable judgment of the Servicer, no Adverse Effect will occur;
(ii) such change is made applicable to all dealer floorplan accounts owned or serviced by the Servicer; and
(iii) in the case of a reduction in the rate of interest charged on the Receivables, the Servicer does not reasonably expect that the reduction will result in the Average Reference Rate for any Collection Period being less than the sum of (A) the weighted average of the Note Interest Rates plus (B) the applicable rate used to calculate the Servicing Fee and the Back-up Servicing Fee, whether or not they are then payable, for the related Interest Period (each such term as defined in the related Indenture Supplement). For purposes of clause (iii) above, so long as the Reference Rate is based on the prime rate of one or more banks (which bank or banks may change from time to time), decreases in the Reference Rate will not be deemed to be a reduction in the rate of interest charged on the Receivables; provided that a decrease in the margin used to determine the interest charged on the Receivables would be deemed to be a reduction.
(e) On behalf Servicer shall be liable for the payment, without reimbursement, of all expenses incurred in connection with the Trust and the servicing activities hereunder including expenses related to enforcement of the Issuer (Receivables, fees and disbursements of Owner Trustee that are due and payable to the extent it under Article 7 of the Issuer’s interest in Trust Agreement, Indenture Trustee, the followingAdministrator, any Paying Agent and any Transfer Agent and Registrar (including the reasonable fees and expenses of its counsel), the Servicer agrees that it holds in trust any document in its possession or control evidencing or securing a Receivable fees and necessary for its servicing pursuant to this Agreementdisbursements of independent accountants and all other fees and expenses, including the documents provided costs of filing UCC continuation statements and the costs and expenses relating to obtaining and maintaining the Servicer pursuant listing of any Notes on any stock exchange, that are not expressly stated in this Agreement to Section 2.5(h) and all other documents created be payable by the Trust, the Noteholders of a Series or Transferor (other than Federal, state, local and foreign income, franchise and other taxes, if any, or any interest or penalties with respect thereto, assessed on the Trust).
(f) Servicer shall maintain fidelity bond or other appropriate insurance coverage insuring against losses through wrongdoing of its officers and employees who are involved in connection with its the servicing pursuant of credit card receivables covering such actions and in such amounts as Servicer believes to this Agreement, in each case, which documents may be in physical or electronic format. The Servicer acknowledges that it holds any documents relating reasonable from time to the Receivables in its possession or control as agent and bailee and custodian for the use and benefit of the Indenture Trustee and the Issuertime.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (World Financial Network Credit Card Master Trust)
Acceptance of Appointment and Other Matters Relating to Servicer. (a) Xxxxxxx Business Services Company agrees to act, and is hereby appointed by Administrative Agent to act, subject to the terms hereof, as the initial Servicer for the Pool Receivables under this Agreement. The Servicer will service, manage, administer and make collections on shall collect payments due under the Receivables, all Pool Receivables in accordance with its servicing procedures for servicing dealer floorplan receivables comparable to the Receivables standards that would be employed by the Servicer services in servicing comparable receivables for its own account or others and comparable to the Pool Receivables and in accordance with the Floorplan Financing Guidelines. The Servicer has Credit and Collection Policy in all material respects and shall have full power and authority, acting alone or through any party properly designated by it under this Agreementhereunder, to do any and all things in connection with such servicing and administration that which it may deem necessary or desirable. .
(b) Without limiting the generality of the foregoingforegoing and subject to the provisions of the Priority of Payments and of Section 7.09, the Servicer is hereby authorized and empowered to do any of the following:
(i) to make deposits into receive and hold in trust for the Collection Account and to instruct Administrative Agent, for the Indenture Trustee or account of the Owner Trustee to make withdrawals and payments Purchasers, Collections received from the Collection Account, the Excess Funding Account Pool Receivables and any Series Account as set forth in this Agreement, the Indenture or any Indenture Supplement and, in connection with the foregoing, perform all calculations (including any allocations of funds and other amounts) required to be performed by the Servicer as provided in this Agreement, the Indenture or any Indenture Supplement;
(ii) to execute and deliver, on behalf of Administrative Agent, for the Issueraccount of the Purchasers, and the Seller, as their respective interests may appear, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the Receivables, after the delinquency of any Receivable and to the extent Pool Receivables permitted under and in compliance with Applicable this Agreement and the other Transaction Documents and applicable Law. To the extent Collections are transferred to or otherwise received by the Servicer, to commence enforcement proceedings with respect to such Receivables;
(iii) to make any filings, reports, notices, applications, registrations withthe Servicer shall, and seek any consents is hereby authorized and empowered to, transfer or authorizations fromcause to be transferred, the Securities and Exchange Commission and any state securities authority on behalf of the Issuer as may be necessary or advisable to comply with any federal or state securities laws or reporting requirement; and
(iv) to delegate certain of its servicing, collection, enforcement and administrative duties under this Agreement with respect all such Collections to the Accounts and the Receivables to any Person; providedCollection Account or, however, that no delegation will relieve the Servicer of its liability and responsibility with respect to such delegated duties. The Indenture Trustee and the Owner Trustee will furnish the Servicer with any powers of attorney and other documents reasonably necessary or appropriate to enable the Servicer to carry out its duties under this Agreement.
(b) If the Depositor is unable for any reason to sell Receivables to the Issuer if specified in accordance with the provisions of this Agreement, then to an account designated by the Servicer agrees (i) Administrative Agent, as soon as practicable, but in no event later than two Business Days after receipt and identification thereof, in each case to give prompt notice of such inability to the Indenture Trustee, the Owner Trustee be allocated and each Rating Agency and (ii) after the occurrence of such event, to allocate Collections received distributed as provided in respect of each related Account in accordance with Section 2.5(b)this Agreement.
(c) The Servicer will notmay perform any and all its duties and exercise its rights and powers hereunder or under the other Transaction Documents by or through its Affiliates or, and any Successor Servicer will not, be obligated to use servicing procedures, offices, employees or accounts for servicing the Receivables different from the procedures, offices, employees and accounts used by it in connection with servicing other floorplan receivables.
(d) The Servicer will comply with and perform its servicing obligations with respect to the Accounts and Receivables in accordance with the related Floorplan Financing Agreements and the Floorplan Financing Guidelines, except insofar as any failure to so comply or perform would prior written consent of all Purchasers (such consent not materially and adversely affect the rights of the Issuer or the Noteholders. Subject to compliance with Applicable Law, the Servicer may change the terms and provisions of any of the Floorplan Financing Agreements or the Floorplan Financing Guidelines in any respect (including the calculation of the amount or the timing of charge offs and the rate of interest charged on the Receivables), only if:
(i) as a result of such change, in the reasonable judgment of the Servicer, no Adverse Effect will occur;
(ii) such change is made applicable to all dealer floorplan accounts owned or serviced by the Servicer; and
(iii) in the case of a reduction in the rate of interest charged on the Receivables, the Servicer does not reasonably expect that the reduction will result in the Average Reference Rate for any Collection Period being less than the sum of (A) the weighted average of the Note Interest Rates plus (B) the applicable rate used to calculate the Servicing Fee and the Back-up Servicing Fee, whether or not they are then payable, for the related Interest Period (each such term as defined in the related Indenture Supplement). For purposes of clause (iii) above, so long as the Reference Rate is based on the prime rate of one or more banks (which bank or banks may change from time to time), decreases in the Reference Rate will not be deemed to be a reduction in the rate of interest charged on the Receivables; provided that a decrease in the margin used to determine the interest charged on the Receivables would be deemed to be a reductionunreasonably withheld or delayed) by or through contractors which are not Affiliates.
(e) On behalf of the Issuer (to the extent of the Issuer’s interest in the following), the Servicer agrees that it holds in trust any document in its possession or control evidencing or securing a Receivable and necessary for its servicing pursuant to this Agreement, including the documents provided to the Servicer pursuant to Section 2.5(h) and all other documents created by the Servicer in connection with its servicing pursuant to this Agreement, in each case, which documents may be in physical or electronic format. The Servicer acknowledges that it holds any documents relating to the Receivables in its possession or control as agent and bailee and custodian for the use and benefit of the Indenture Trustee and the Issuer.
Appears in 1 contract
Acceptance of Appointment and Other Matters Relating to Servicer. (a) The WFN is appointed, and agrees to act, as Servicer.
(b) Servicer will serviceshall service and administer the Receivables, manage, administer shall collect payments due under the Receivables and make collections on the shall charge off as uncollectible Receivables, all in accordance with its customary and usual servicing procedures for servicing dealer floorplan credit card and other consumer open end credit receivables comparable to the Receivables that the Servicer services for its own account or others and in accordance with the Floorplan Financing Credit Card Guidelines. The Servicer has shall have full power and authority, acting alone or through any party properly designated by it under this Agreementhereunder, to do any and all things in connection with such servicing and administration that which it may deem necessary or desirable. Without limiting the generality of the foregoing, the subject to Section 10.1 and provided WFN is Servicer, Servicer or its designee (rather than Trustee) is hereby authorized and empowered to do any of the following:
(i) to make deposits into the Collection Account withdrawals and payments or to instruct the Indenture Trustee or the Owner Trustee to make withdrawals and payments from the Collection Account, the Excess Funding Account and any Series Account Account, as set forth in this Agreement, the Indenture Agreement or any Indenture Supplement andSupplement, in connection with the foregoing, perform all calculations (including any allocations of funds and other amounts) required to be performed by the Servicer as provided in this Agreement, the Indenture or any Indenture Supplement;
(ii) to execute and delivertake any action required or permitted under any Enhancement, on behalf as set forth in this Agreement or any Supplement. Without limiting the generality of the Issuerforegoing and subject to Section 10.1, any Servicer or its designee is authorized and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the Receivables, after the delinquency of any Receivable and to the extent permitted under and in compliance with Applicable Law, to commence enforcement proceedings with respect to such Receivables;
(iii) empowered to make any filings, reports, notices, applications, applications and registrations with, and to seek any consents or authorizations from, the Securities and Exchange Commission and any state securities authority on behalf of the Issuer Trust as may be necessary or advisable to comply with any federal Federal or state securities laws or reporting requirement; and
(iv) to delegate certain of its servicing, collection, enforcement and administrative duties under this Agreement with respect to the Accounts and the Receivables to any Person; provided, however, that no delegation will relieve the Servicer of its liability and responsibility with respect to such delegated dutiesrequirements. The Indenture Trustee and the Owner Trustee will shall furnish the Servicer with any powers of attorney and or other documents reasonably necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties under this Agreement.
(b) If the Depositor is unable for any reason to sell Receivables to the Issuer in accordance with the provisions of this Agreement, then the Servicer agrees (i) to give prompt notice of such inability to the Indenture Trustee, the Owner Trustee and each Rating Agency and (ii) after the occurrence of such event, to allocate Collections received in respect of each related Account in accordance with Section 2.5(b)hereunder.
(c) The Servicer will not, and any Successor Servicer will not, shall not be obligated to use separate servicing procedures, offices, employees or accounts for servicing the Receivables different from the procedures, offices, employees and accounts used by it Servicer in connection with servicing other floorplan credit card receivables.
(d) The Servicer will shall comply with and perform its servicing obligations with respect to the Accounts and Receivables in accordance with the related Floorplan Financing Credit Card Agreements relating to the Accounts and the Floorplan Financing Guidelines, Credit Card Guidelines except insofar as any failure to so comply or perform would not materially and adversely affect the rights of the Issuer Trust or the Noteholders. Subject to compliance with Applicable Law, the Servicer may change the terms and provisions of any of the Floorplan Financing Agreements or the Floorplan Financing Guidelines in any respect (including the calculation of the amount or the timing of charge offs and the rate of interest charged on the Receivables), only if:
(i) as a result of such change, in the reasonable judgment of the Servicer, no Adverse Effect will occur;
(ii) such change is made applicable to all dealer floorplan accounts owned or serviced by the Servicer; and
(iii) in the case of a reduction in the rate of interest charged on the Receivables, the Servicer does not reasonably expect that the reduction will result in the Average Reference Rate for any Collection Period being less than the sum of (A) the weighted average of the Note Interest Rates plus (B) the applicable rate used to calculate the Servicing Fee and the Back-up Servicing Fee, whether or not they are then payable, for the related Interest Period (each such term as defined in the related Indenture Supplement). For purposes of clause (iii) above, so long as the Reference Rate is based on the prime rate of one or more banks (which bank or banks may change from time to time), decreases in the Reference Rate will not be deemed to be a reduction in the rate of interest charged on the Receivables; provided that a decrease in the margin used to determine the interest charged on the Receivables would be deemed to be a reductionInvestor Holders.
(e) On behalf Servicer shall be liable for the payment, without reimbursement, of all expenses incurred in connection with the Trust and the servicing activities hereunder including expenses related to enforcement of the Issuer Receivables, fees and disbursements of Trustee, any Paying Agent and any Transfer Agent and Registrar (to including the extent reasonable fees and expenses of the Issuer’s interest its counsel) in the following)accordance with Section 11.5, the Servicer agrees that it holds in trust any document in its possession or control evidencing or securing a Receivable fees and necessary for its servicing pursuant to this Agreementdisbursements of independent accountants and all other fees and expenses, including the documents provided costs of filing UCC continuation statements and the costs and expenses relating to obtaining and maintaining the Servicer pursuant listing of any Investor Certificates on any stock exchange, that are not expressly stated in this Agreement to Section 2.5(h) and all other documents created be payable by the Trust, the Investor Holders of a Series or Transferor (other than Federal, state, local and foreign income, franchise and other taxes, if any, or any interest or penalties with respect thereto, assessed on the Trust).
(f) Servicer shall maintain fidelity bond or other appropriate insurance coverage insuring against losses through wrongdoing of its officers and employees who are involved in connection with its the servicing pursuant of credit card receivables covering such actions and in such amounts as Servicer believes to this Agreement, in each case, which documents may be in physical or electronic format. The Servicer acknowledges that it holds any documents relating reasonable from time to the Receivables in its possession or control as agent and bailee and custodian for the use and benefit of the Indenture Trustee and the Issuertime.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (World Financial Network National Bank)
Acceptance of Appointment and Other Matters Relating to Servicer. (a) The WFN is appointed, and agrees to act, as Servicer.
(b) Servicer will serviceshall service and administer the Receivables, manage, administer shall collect payments due under the Receivables and make collections on the shall charge off as uncollectible Receivables, all in accordance with its customary and usual servicing procedures for servicing dealer floorplan credit card and other consumer open end credit receivables comparable to the Receivables that the Servicer services for its own account or others and in accordance with the Floorplan Financing Credit Card Guidelines. The Servicer has shall have full power and authority, acting alone or through any party properly designated by it under this Agreementhereunder, to do any and all things in connection with such servicing and administration that which it may deem necessary or desirable. Without limiting the generality of the foregoing, the subject to SECTION 10.1 and provided WFN is Servicer, Servicer or its designee (rather than Trustee) is hereby authorized and empowered to do any of the following:
(i) to make deposits into the Collection Account withdrawals and payments or to instruct the Indenture Trustee or the Owner Trustee to make withdrawals and payments from the Collection Account, the Excess Funding Account and any Series Account Account, as set forth in this Agreement, the Indenture Agreement or any Indenture Supplement andSupplement, in connection with the foregoing, perform all calculations (including any allocations of funds and other amounts) required to be performed by the Servicer as provided in this Agreement, the Indenture or any Indenture Supplement;
(ii) to execute and delivertake any action required or permitted under any Enhancement, on behalf as set forth in this Agreement or any Supplement. Without limiting the generality of the Issuerforegoing and subject to SECTION 10.1, any Servicer or its designee is authorized and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the Receivables, after the delinquency of any Receivable and to the extent permitted under and in compliance with Applicable Law, to commence enforcement proceedings with respect to such Receivables;
(iii) empowered to make any filings, reports, notices, applications, applications and registrations with, and to seek any consents or authorizations from, the Securities and Exchange Commission and any state securities authority on behalf of the Issuer Trust as may be necessary or advisable to comply with any federal Federal or state securities laws or reporting requirement; and
(iv) to delegate certain of its servicing, collection, enforcement and administrative duties under this Agreement with respect to the Accounts and the Receivables to any Person; provided, however, that no delegation will relieve the Servicer of its liability and responsibility with respect to such delegated dutiesrequirements. The Indenture Trustee and the Owner Trustee will shall furnish the Servicer with any powers of attorney and or other documents reasonably necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties under this Agreement.
(b) If the Depositor is unable for any reason to sell Receivables to the Issuer in accordance with the provisions of this Agreement, then the Servicer agrees (i) to give prompt notice of such inability to the Indenture Trustee, the Owner Trustee and each Rating Agency and (ii) after the occurrence of such event, to allocate Collections received in respect of each related Account in accordance with Section 2.5(b)hereunder.
(c) The Servicer will not, and any Successor Servicer will not, shall not be obligated to use separate servicing procedures, offices, employees or accounts for servicing the Receivables different from the procedures, offices, employees and accounts used by it Servicer in connection with servicing other floorplan credit card receivables.
(d) The Servicer will shall comply with and perform its servicing obligations with respect to the Accounts and Receivables in accordance with the related Floorplan Financing Credit Card Agreements relating to the Accounts and the Floorplan Financing Guidelines, Credit Card Guidelines except insofar as any failure to so comply or perform would not materially and adversely affect the rights of the Issuer Trust or the Noteholders. Subject to compliance with Applicable Law, the Servicer may change the terms and provisions of any of the Floorplan Financing Agreements or the Floorplan Financing Guidelines in any respect (including the calculation of the amount or the timing of charge offs and the rate of interest charged on the Receivables), only if:
(i) as a result of such change, in the reasonable judgment of the Servicer, no Adverse Effect will occur;
(ii) such change is made applicable to all dealer floorplan accounts owned or serviced by the Servicer; and
(iii) in the case of a reduction in the rate of interest charged on the Receivables, the Servicer does not reasonably expect that the reduction will result in the Average Reference Rate for any Collection Period being less than the sum of (A) the weighted average of the Note Interest Rates plus (B) the applicable rate used to calculate the Servicing Fee and the Back-up Servicing Fee, whether or not they are then payable, for the related Interest Period (each such term as defined in the related Indenture Supplement). For purposes of clause (iii) above, so long as the Reference Rate is based on the prime rate of one or more banks (which bank or banks may change from time to time), decreases in the Reference Rate will not be deemed to be a reduction in the rate of interest charged on the Receivables; provided that a decrease in the margin used to determine the interest charged on the Receivables would be deemed to be a reductionInvestor Holders.
(e) On behalf Servicer shall be liable for the payment, without reimbursement, of all expenses incurred in connection with the Trust and the servicing activities hereunder including expenses related to enforcement of the Issuer Receivables, fees and disbursements of Trustee, any Paying Agent and any Transfer Agent and Registrar (to including the extent reasonable fees and expenses of the Issuer’s interest its counsel) in the following)accordance with SECTION 11.5, the Servicer agrees that it holds in trust any document in its possession or control evidencing or securing a Receivable fees and necessary for its servicing pursuant to this Agreementdisbursements of independent accountants and all other fees and expenses, including the documents provided costs of filing UCC continuation statements and the costs and expenses relating to obtaining and maintaining the Servicer pursuant listing of any Investor Certificates on any stock exchange, that are not expressly stated in this Agreement to Section 2.5(h) and all other documents created be payable by the Servicer in connection Trust, the Investor Holders of a Series or Transferor (other than Federal, state, local and foreign income, franchise and other taxes, if any, or any interest or penalties with its servicing pursuant to this Agreementrespect thereto, in each case, which documents may be in physical or electronic format. The Servicer acknowledges that it holds any documents relating to assessed on the Receivables in its possession or control as agent and bailee and custodian for the use and benefit of the Indenture Trustee and the IssuerTrust).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Alliance Data Systems Corp)
Acceptance of Appointment and Other Matters Relating to Servicer. (a) The Servicer will service, manage, administer and make collections on the Receivables, all in accordance with its customary and usual servicing procedures for servicing dealer floorplan receivables comparable to the Receivables that the Servicer services for its own account or others and in accordance with the applicable Floorplan Financing Guidelines. The Servicer has full power and authority, acting alone or through any party properly designated by it under this Agreementhereunder, to do any and all things in connection with such servicing and administration that it may deem necessary or desirable. Without limiting the generality of the foregoingforegoing and subject to Section 6.01, the Servicer is hereby authorized and empowered empowered, unless such power and authority is revoked by the Indenture Trustee upon the occurrence of a Servicer Default pursuant to Section 6.01, to do any of the following:
(i) to make deposits into the Collection Account and to instruct the Indenture Trustee or the Owner Trustee to make withdrawals and payments from the Collection Account, the Excess Funding Account and any Series Account as set forth in this Agreement, the Indenture or any Indenture Supplement and, in connection with the foregoingtherewith, perform all calculations (including any allocations of funds and other amounts) required to be performed by the Servicer as provided in this Agreement, the Indenture or any Indenture Supplement;
(ii) to instruct the Indenture Trustee or the Owner Trustee to take any action required or permitted under any Series Enhancement;
(iii) to execute and deliver, on behalf of the Issuer, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the Receivables, after the delinquency of any Receivable and to the extent permitted under and in compliance with Applicable applicable Requirements of Law, to commence enforcement proceedings with respect to such Receivables;
(iiiiv) to make any filings, reports, notices, applications, registrations with, and seek any consents or authorizations from, the Securities and Exchange Commission and any state securities authority on behalf of the Issuer as may be necessary or advisable to comply with any federal or state securities laws or reporting requirement; and
(ivv) to delegate certain of its servicing, collection, enforcement and administrative duties under this Agreement hereunder with respect to the Accounts and the Receivables to any PersonPerson who agrees to conduct such duties in accordance with the applicable Floorplan Financing Guidelines and this Agreement; provided, however, that the Servicer will notify the Indenture Trustee, the Owner Trustee, the Rating Agencies and any Series Enhancers in writing of any such delegation other than in the ordinary course of its business or to a Person that is not one of the Servicer's Affiliates; and, provided further, that no delegation will relieve the Servicer of its liability and responsibility with respect to such delegated dutiesduties and will not constitute a resignation within the meaning of Section 5.05. The Indenture Trustee and the Owner Trustee will furnish the Servicer with any powers of attorney and other documents reasonably necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties under this Agreementhereunder.
(b) If the Depositor Transferor is unable for any reason to sell transfer Receivables to the Issuer in accordance with the provisions of this AgreementAgreement then, then in any such event, the Servicer agrees (i) to give prompt written notice of such inability thereof to the Indenture Trustee, the Owner Trustee Trustee, any Series Enhancers and each Rating Agency and (ii) after the occurrence of such event, to allocate Collections received in respect of each related Account in accordance with Section 2.5(b2.05(ii).
(c) The Servicer will not, and any Successor Servicer will not, be obligated to use servicing procedures, offices, employees or accounts for servicing the Receivables different from the procedures, offices, employees and accounts used by it in connection with servicing other floorplan receivables.
(d) The Servicer will comply with and perform its servicing obligations with respect to the Accounts and Receivables in accordance with the related applicable Floorplan Financing Agreements relating to the Accounts and the applicable Floorplan Financing Guidelines, except insofar as any failure to so comply or perform would not materially and adversely affect the rights of the Issuer or the NoteholdersNoteholders and any Series Enhancers. Subject to compliance with Applicable all Requirements of Law, the Servicer may change the terms and provisions of any of the Floorplan Financing Agreements or the its Floorplan Financing Guidelines in any respect (including the calculation of the amount or the timing of charge offs and the rate of the interest charged on the Receivablescharge assessed thereon), only if:
(i) as a result of such change, in the reasonable judgment of the Servicer, no Adverse Effect Amortization Event will occuroccur at any time and none of the Series Enhancers, if any, or the Noteholders will be adversely affected;
(ii) such change is made applicable to all the comparable segment of dealer floorplan accounts owned or serviced by the ServicerServicer that have characteristics the same as, or substantially similar to, the Accounts that are the subject of such change; and
(iii) in the case of a reduction in the rate of such interest charged on the Receivablescharges, the Servicer does not reasonably expect that the any such reduction will to result in the Average weighted average of the Reference Rate Rates applicable to the Receivables (net of the applicable rate used to calculate the Servicing Fee) for any Collection Period being less than the sum of (A) the weighted average of the Note Interest Rates plus and (B) the applicable rate used to calculate the Servicing Fee and the Back-up Servicing Fee, whether or not they are then payable, for the related Interest Period (each such term as defined in the related Indenture Supplement). For purposes of clause (iii) aboveof the preceding sentence, so long as the Reference Rate is based on the prime rate of one or more banks (which bank or banks may change from time to time), decreases downward fluctuations in the Reference Rate will not be deemed to be a reduction in the rate of such interest charged on the Receivablescharges; provided that a decrease reduction in the margin used added to such Reference Rate to determine the interest charged on the Receivables charge would be deemed to be a reductionreduction in such interest charge.
(e) On behalf of the Issuer (to the extent of the Issuer’s 's interest in the followingtherein), the Servicer hereby agrees that it holds in trust any document in its possession or control evidencing or securing a Receivable and necessary for its servicing thereof pursuant to this Agreement, including the documents provided to the Servicer pursuant to Section 2.5(h) and all other documents created by the Servicer in connection with its servicing pursuant to this Agreement, in each case, which documents may be in physical or electronic format. The Servicer acknowledges that it holds any documents relating to the Receivables in its possession or control as agent and bailee and custodian for the use and benefit of the Indenture Trustee and the Issuer.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Ford Credit Floorplan Corp)
Acceptance of Appointment and Other Matters Relating to Servicer. (a) In connection with and in consideration for the conveyance of the 1990 Trust Seller Certificate, the Dealer Notes and the other rights conveyed hereunder to the Master Trust, the Seller, in its capacity as holder of the NFSC Certificate, agrees to cause NFC to act as Servicer under this Agreement and NFC agrees to act as Servicer under this Agreement. The Investor Certificateholders by their acceptance of the Investor Certificates consent to NFC acting as Servicer.
(b) The Servicer will serviceis hereby authorized in the name and on behalf of the Master Trust Trustee and the Seller, manageand agrees, to service and administer the Dealer Notes and make collections on the Receivables, all collect payments due under such Dealer Notes in accordance with its customary and usual servicing procedures for servicing dealer floorplan receivables wholesale chattel paper comparable to the Receivables that the Servicer services for its own account or others Dealer Notes and in accordance with the Floorplan Financing Credit Guidelines. The Servicer has full power and authorityServicer, acting alone or through any party properly designated by it under this Agreementpursuant to Section 8.07, to shall do any and all things in connection with such servicing and administration that which it may deem necessary or desirable. Without limiting the generality of the foregoingforegoing and subject to Section 10.01, the Servicer is hereby authorized and empowered to do any of the following:
empowered, (i) to make deposits into unless such power and authority is revoked by the Collection Account and Master Trust Trustee, to instruct the Indenture Trustee or the Owner Master Trust Trustee to make withdrawals and payments from the Collection Collections Account, the Excess Funding Account and any Series Account as set forth in this Agreement, the Indenture Agreement or any Indenture Supplement andSupplement, in connection with the foregoing, perform all calculations (including any allocations of funds and other amounts) required to be performed by the Servicer as provided in this Agreement, the Indenture or any Indenture Supplement;
(ii) effective on the 1990 Trust Termination Date, to execute and deliver, on behalf of the IssuerMaster Trust for the benefit of the Certificateholders and the other Beneficiaries (but in its own name, without reference to the fact that it is acting for the Master Trust), any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the ReceivablesDealer Notes and, after the delinquency of any Receivable such Dealer Notes and to the extent permitted under and in compliance with Applicable Lawapplicable law and regulations, to commence enforcement collection proceedings with respect to such Receivables;
Dealer Notes, (iii) to make any filings, reports, notices, applications, filings or registrations with, and to seek any consents or authorizations from, the Securities and Exchange Commission and any state securities authority of any jurisdiction on behalf of the Issuer Master Trust as may be necessary or advisable to comply with any federal or state the securities laws or reporting requirement; and
requirements laws of the United States or any state or other jurisdiction, (iv) to instruct the Master Trust Trustee to take any action required or permitted under any Enhancement and (v) effective on the 1990 Trust Termination Date, to delegate certain of its servicing, collection, enforcement and administrative duties under this Agreement hereunder with respect to the Accounts and the Receivables Dealer Notes to any PersonPerson who agrees to conduct such duties in accordance with the Credit Guidelines and this Agreement; provided, however, that the Servicer shall notify the Master Trust Trustee, the Rating Agencies, and any Enhancement Providers in writing of any such delegation of its duties which is not in the ordinary course of its business, no delegation will relieve the Servicer of its liability and responsibility with respect to such delegated dutiesduties and the Rating Agency Condition shall have been satisfied with respect to any such delegation. The Indenture Master Trust Trustee and the Owner Trustee will shall furnish the Servicer with any powers of attorney and other documents reasonably as the Servicer may request necessary or appropriate under the laws of any jurisdiction with authority over the Dealer Notes to enable the Servicer to carry out its servicing and administrative duties under this Agreementhereunder.
(bc) If In the Depositor event that the Seller is unable for any reason to sell Receivables transfer dealer notes to the Issuer Master Trust in accordance with the provisions of this Agreement, then then, in any such event, the Servicer agrees (i) to give prompt notice apply, after the date of such inability inability, all collections (to the Indenture Trusteeextent received) with respect to any dealer notes that would otherwise have been transferred to the Master Trust as Dealer Note Collections or Finance Charge Collections, as the Owner Trustee and each Rating Agency and (ii) after the occurrence of such eventcase may be, to allocate Collections received in respect of each related Account in accordance with Section 2.5(b)Article IV and any Supplement. Dealer Notes written off as uncollectible in accordance with this Agreement shall continue to be allocated in accordance with Article IV and any Supplement.
(cd) The Servicer will not, and any Successor Servicer will not, shall under no circumstances be obligated to use servicing procedures, offices, employees or accounts for servicing the Receivables different Dealer Notes separate from the procedures, offices, employees and accounts used by it the Servicer in connection with servicing other floorplan receivablesdealer notes.
(d) The Servicer will comply with and perform its servicing obligations with respect to the Accounts and Receivables in accordance with the related Floorplan Financing Agreements and the Floorplan Financing Guidelines, except insofar as any failure to so comply or perform would not materially and adversely affect the rights of the Issuer or the Noteholders. Subject to compliance with Applicable Law, the Servicer may change the terms and provisions of any of the Floorplan Financing Agreements or the Floorplan Financing Guidelines in any respect (including the calculation of the amount or the timing of charge offs and the rate of interest charged on the Receivables), only if:
(i) as a result of such change, in the reasonable judgment of the Servicer, no Adverse Effect will occur;
(ii) such change is made applicable to all dealer floorplan accounts owned or serviced by the Servicer; and
(iii) in the case of a reduction in the rate of interest charged on the Receivables, the Servicer does not reasonably expect that the reduction will result in the Average Reference Rate for any Collection Period being less than the sum of (A) the weighted average of the Note Interest Rates plus (B) the applicable rate used to calculate the Servicing Fee and the Back-up Servicing Fee, whether or not they are then payable, for the related Interest Period (each such term as defined in the related Indenture Supplement). For purposes of clause (iii) above, so long as the Reference Rate is based on the prime rate of one or more banks (which bank or banks may change from time to time), decreases in the Reference Rate will not be deemed to be a reduction in the rate of interest charged on the Receivables; provided that a decrease in the margin used to determine the interest charged on the Receivables would be deemed to be a reduction.
(e) On behalf of the Issuer (to the extent of the Issuer’s interest in the following), the Servicer agrees that it holds in trust any document in its possession or control evidencing or securing a Receivable and necessary for its servicing pursuant to this Agreement, including the documents provided to the Servicer pursuant to Section 2.5(h) and all other documents created by the Servicer in connection with its servicing pursuant to this Agreement, in each case, which documents may be in physical or electronic format. The Servicer acknowledges that it holds any documents relating to the Receivables in its possession or control as agent and bailee and custodian for the use and benefit of the Indenture Trustee and the Issuer.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Navistar Financial Securities Corp)
