Amendment; Waiver of Past Defaults. (a) This Agreement or any Supplement may be amended from time to time (including in connection with (x) the issuance of a Supplemental Interest, (y) the addition of a Participation Interest to the Trust or (z) the designation of an Additional Transferor or Additional Account Owner) by the Servicer, the Transferors and the Trustee without the consent of any of the Certificateholders, provided that (i) each Transferor shall have delivered to the Trustee an Officer's Certificate to the effect that such Transferor reasonably believes that such action shall not adversely affect in any material respect the interests of any Investor Certificateholder and (ii) the Rating Agency Condition shall have been satisfied with respect to any such amendment; provided, however, that notwithstanding the fact that clauses (i) and (ii) of this Section 13.01(a) would otherwise apply, any amendment that significantly changes the permitted activities of the Trust described in Section 2.02(e) shall require the consent of the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of the Investor Certificates of all outstanding Series. (b) This Agreement or any Supplement may also be amended from time to time by the Servicer, the Transferors and the Trustee, with the consent of the Holders of Investor Certificates evidencing not less than 66-2/3% of the aggregate unpaid principal amount of the Investor Certificates of all adversely affected Series, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or any Supplement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall (i) reduce in any manner the amount of or delay the timing of any distributions to be made to Investor Certificateholders or deposits of amounts to be so distributed or the amount available under any Series Enhancement without the consent of each affected Certificateholder (provided that any amendment of the terms of a Pay Out Event shall not be deemed to be within the scope of this clause (i)), (ii) change the definition of or the manner of calculating the interest of any Investor Certificateholder without the consent of each affected Investor Certificateholder, (iii) reduce the aforesaid percentage required to consent to any such amendment without the consent of each Investor Certificateholder or (iv) adversely affect the rating of any Series or Class by each Rating Agency without the consent of the Holders of Investor Certificates of such Series or Class evidencing not less than 66-2/3% of the aggregate unpaid principal amount of the Investor Certificates of such Series or Class. Any amendment to be effected pursuant to this paragraph shall be deemed to adversely affect all outstanding Series, other than any Series with respect to which such action shall not, as evidenced by an Opinion of Counsel for the Transferors, addressed and delivered to the Trustee, adversely affect in any material respect the interests of any Investor Certificateholder of such Series. The Trustee may, but shall not be obligated to, enter into any such amendment which affects the Trustee's rights, duties or immunities under this Agreement or otherwise. (c) Promptly after the execution of any such amendment or consent (other than an amendment pursuant to paragraph (a)), the Trustee shall furnish notification of the substance of such amendment to each Investor Certificateholder, and the Servicer shall furnish notification of the substance of such amendment to each Rating Agency and each Series Enhancer entitled thereto pursuant to the relevant Supplement. (d) It shall not be necessary for the consent of Investor Certificateholders under this Section to approve the particular form of any proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Investor Certificateholders shall be subject to such reasonable requirements as the Trustee may prescribe. (e) Any Supplement executed in accordance with the provisions of Section 6.03 shall not be considered an amendment to this Agreement for the purposes of this Section. (f) The Holders of Investor Certificates evidencing more than 66-2/3% of the aggregate unpaid principal amount of the Investor Certificates of each Series, or, with respect to any Series with two or more Classes, of each Class (or, with respect to any default that does not relate to all Series, 66-2/3% of the aggregate unpaid principal amount of the Investor Certificates of each Series to which such default relates or, with respect to any such Series with two or more classes, of each Class) may, on behalf of all Certificateholders, waive any default by the Transferors or the Servicer in the performance of their obligations hereunder and its consequences, except the failure to make any distributions required to be made to Investor Certificateholders or to make any required deposits of any amounts to be so distributed. Upon any such waiver of a past default, such default shall cease to exist, and any default arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Providian Master Trust), Pooling and Servicing Agreement (Providian Master Trust)
Amendment; Waiver of Past Defaults. (a) This Agreement or any Supplement may be amended from time to time (including in connection with (x) the issuance of a Supplemental Interest, (y) the addition of a Participation Interest to the Trust or (z) the designation of an Additional Transferor or Additional Account Owner) by the Servicer, the Transferors Transferor and the Trustee Issuer, without the consent of any of the CertificateholdersNoteholders, provided that (i) each Transferor shall have delivered to cure any ambiguity, to correct or supplement any provisions herein which may be inconsistent with any other provisions herein, to add one or more new identifying code numbers to the Trustee an Officer's Certificate definition of Creation Date or the first paragraph of Section 2.6(d) or to add any other provisions with respect to matters or questions raised under this Agreement which shall not be inconsistent with the provisions of this Agreement, including any matters arising under Section 2.5(d) necessary to effect that such Transferor reasonably believes the conveyance contemplated thereunder; provided, however, that such action shall not adversely affect in any material respect the interests of any Investor Certificateholder of the Noteholders; and, provided further, that an amendment pursuant to this Section 9.1(a) shall not effect a significant change in the Permitted Activities of the Issuer. Prior to executing any amendment in accordance with this Section 9.1(a), the Indenture Trustee and (iithe Owner Trustee shall receive and shall be permitted to rely upon an Opinion of Counsel to the effect that the conditions and requirements of this Section 9.1(a) the Rating Agency Condition shall have been satisfied with respect (without implying that such a rating confirmation is required 40 to be obtained, such Opinion of Counsel may rely as to any rated Series solely on a rating confirmation from the Rating Agencies that such amendment; provided, however, that notwithstanding amendment shall not cause a reduction or withdrawal of the fact that clauses (i) and (ii) rating of any outstanding Series of Notes). The Transferor shall deliver prior written notice of any amendment pursuant to this Section 13.01(a9.1(a) would otherwise apply, any amendment that significantly changes the permitted activities of the Trust described in Section 2.02(e) shall require the consent of the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of the Investor Certificates of all outstanding Seriesto each Rating Agency.
(b) This Agreement or any Supplement may also be amended from time to time by the Servicer, the Transferors Transferor and the TrusteeIssuer, with without the consent of the Holders of Investor Certificates evidencing not less than 66-2/3% any of the aggregate unpaid principal amount of the Investor Certificates of all adversely affected SeriesNoteholders, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or any Supplement or of modifying in any manner the rights of the CertificateholdersNoteholders of any Series then issued and outstanding; provided, however, that (i) the Servicer shall have provided an Opinion of Counsel to the Indenture Trustee to the effect that such amendment will not materially and adversely affect the interests of the Noteholders of any outstanding Series, which Opinion of Counsel may rely as to any rated Series solely on the rating confirmation referred to in clause (iii) below (or 100% of the Class of Noteholders so affected shall have consented), (ii) such amendment shall not, as evidenced by an Opinion of Counsel, cause any outstanding Series as to which an opinion that it was debt was given on its Closing Date to fail to qualify as debt for Federal income tax purposes, cause the Issuer to be characterized for Federal income tax purposes as an association taxable as a corporation or otherwise have any material adverse impact on the Federal income tax characterization of any outstanding Series of Notes or the Federal income taxation of any Noteholder or any Note Owner and (iii) the Rating Agency Condition shall have been satisfied; and, provided further, that such amendment shall not effect a significant change in the Permitted Activities of the Issuer or reduce in any manner the amount of, or delay the timing of, or change the priority of, distributions which are required to be made on any Note of such Series without the consent of the related Noteholder or change the definition of or the manner of calculating the interest of any Note of such Series without the consent of the related Noteholder or reduce the required percentage for consents to amendments pursuant to Section 9.1(c) without the consent of each affected Noteholder.
(c) This Agreement may also be amended from time to time by the Servicer, the Transferor and the Issuer, with the consent of the Holders of Notes aggregating not less than 66-2/3% of the Invested Amount of all Series adversely affected, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or modifying in any manner the rights of the Noteholders of any Series then issued and outstanding; provided, however, that no such amendment shall (i) reduce in any manner the amount of of, or delay the timing of any of, distributions which are required to be made to Investor Certificateholders or deposits on any Note of amounts to be so distributed or the amount available under any such Series Enhancement without the consent of each affected Certificateholder (provided that any amendment of the terms of a Pay Out Event shall not be deemed to be within the scope of this clause (i))related Noteholders, (ii) change the definition of or the manner of calculating the interest Invested Amount, the Invested Percentage, the applicable available amount under any Enhancement or the Investor Default Amount of any Investor Certificateholder such Series without the consent of each affected Investor Certificateholder, the related Noteholders or (iii) reduce the aforesaid percentage required to consent to any such amendment without the consent of each Investor Certificateholder or (iv) adversely affect the rating of any Series or Class by each Rating Agency amendment, without the consent of the Holders of Investor Certificates of such Series or Class evidencing not less than 66-2/3% of the aggregate unpaid principal amount of the Investor Certificates of such Series or Classrelated Noteholders. Any amendment to be effected pursuant to this paragraph Section 9.1(c) shall be deemed to adversely affect all outstanding Series, other than any require that each Rating Agency rating the affected Series with respect to which confirm that such action shall not, as evidenced by an Opinion amendment will not cause a reduction or withdrawal of Counsel for the Transferors, addressed and delivered to the Trustee, adversely affect in any material respect the interests rating of any Investor Certificateholder outstanding Series of such Series. The Trustee may, but shall not be obligated to, enter into any such amendment which affects the Trustee's rights, duties or immunities under this Agreement or otherwiseNotes.
(cd) Promptly after the execution of any such amendment or consent (other than an amendment pursuant to paragraph (a)Section 9.1(a), the Trustee Issuer shall furnish written notification (or in the case of Bearer Notes, publication notice in the manner described in the related Indenture Supplement) of the substance of such amendment to each Noteholder, and the Servicer shall furnish written notification of the substance of such amendment to each Investor Certificateholder, any related Enhancement Provider and the Servicer shall furnish notification of the substance of such amendment to each Rating Agency and each Series Enhancer entitled thereto pursuant to the relevant SupplementAgency.
(de) It shall not be necessary for the consent of Investor Certificateholders Noteholders under this Section 9.1 to approve the particular form of any proposed amendment, but it shall be sufficient if such consent Noteholders shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Investor Certificateholders Noteholders shall be subject to such reasonable requirements as the Trustee may prescribe.
(ef) Any Supplement Assignment or Reassignment regarding the addition to or removal of Receivables from the Issuer respectively, as provided in Sections 2.6 and 2.7, respectively, executed in accordance with the provisions of Section 6.03 hereof shall not be considered an amendments to this Agreement, including, without limitation, for the purpose of Sections 9.1(a), (b), (c) and (g).
(g) Prior to the execution of any amendment to this Agreement, the Indenture Trustee shall be entitled to receive and rely upon an Opinion of Counsel substantially in the form of Exhibit F-2. The Indenture Trustee may, but shall not be obligated to, enter into any such amendment which affects the Indenture Trustee's own rights, duties or immunities under this Agreement for the purposes of this Sectionor otherwise.
(fh) The Holders of Investor Certificates evidencing more than 66-2/3% of Notwithstanding anything in this Section 9.1 to the aggregate unpaid principal amount of the Investor Certificates of each Seriescontrary, or, with respect this Agreement shall not be amended to any Series with two or more Classes, of each Class (or, with respect to any default that does not relate to all Series, 66-2/3% of the aggregate unpaid principal amount of the Investor Certificates of each Series to which such default relates or, with respect to any such Series with two or more classes, of each Class) may, on behalf of all Certificateholders, waive any default by the Transferors or the Servicer in the performance of their obligations hereunder and its consequences, except the failure to make any distributions required to be made to Investor Certificateholders replace DC Funding as Transferor or to make add any required deposits of any amounts to be so distributed. Upon any such waiver of a past default, such default Person as Transferor unless the Rating Agency Condition shall cease to exist, and any default arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivedsatisfied.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Dc Funding International Inc)
Amendment; Waiver of Past Defaults. (a) This Agreement or any Supplement may be amended from time to time (including in connection with (x) the issuance of a Supplemental Interest, (y) the addition of a Participation Interest to the Trust or (z) the designation of an Additional Transferor or Additional Account Owner) by the Servicer, the Transferors Seller and the Trustee Issuer, without the consent of any of the CertificateholdersIndenture Trustee or any Noteholder to cure any ambiguity, provided that (i) each Transferor to correct or supplement any provisions herein which may be inconsistent with any other provisions herein or to add any other provisions with respect to matters or questions raised under this Agreement which shall have delivered to not be inconsistent with the Trustee an Officer's Certificate to the effect that such Transferor reasonably believes provisions of this Agreement; provided, however, that such action shall not adversely affect in any material -------- ------- respect the interests of any Investor Certificateholder of the Noteholders. Additionally, this Agreement may be amended from time to time by the Servicer, the Seller and the Issuer by a written instrument signed by each of them, without the consent of the Indenture Trustee or any of the Noteholders; provided that (i) Seller shall have delivered to the Indenture -------- Trustee and the Owner Trustee an Officer's Certificate, dated the date of any such Amendment, stating that Seller reasonably believes that such amendment will not have an Adverse Effect and (ii) the Rating Agency Condition shall have been satisfied with respect to any such amendment. Additionally, notwithstanding the preceding sentence, this Agreement will be amended by the Servicer and the Issuer at the direction of Seller without the consent of the Indenture Trustee or any of the Noteholders or Series Enhancers to add, modify or eliminate such provisions as may be necessary or advisable in order to enable all or a portion of the Issuer (1) to qualify as, and to permit an election to be made to cause the Issuer to be treated as, a "financial asset securitization investment trust" as described in the provisions of Section 860L of the Code, and (2) to avoid the imposition of state or local income or franchise taxes imposed on the Issuer's property or its income; provided, however, that notwithstanding (A) Seller delivers to the fact -------- ------- Indenture Trustee and the Owner Trustee an Officer's Certificate to the effect that clauses the proposed amendments meet the requirements set forth in this Section, (iB) the Rating Agency Condition has been satisfied, and (iiC) of this Section 13.01(a) would otherwise applysuch amendment does not affect the rights, any amendment that significantly changes the permitted activities duties or obligations of the Trust described in Section 2.02(e) shall require Indenture Trustee or the Owner Trustee hereunder. The amendments which Seller may make without the consent of Noteholders or Series Enhancers pursuant to the Holders preceding sentence may include the addition of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of the Investor Certificates of all outstanding Seriesa Seller.
(b) This Agreement or any Supplement may also be amended from time to time by the Servicer, the Transferors Seller and the TrusteeIssuer, with the consent of the Holders of Investor Certificates evidencing not less Noteholders holding more than 66-66 2/3% of the aggregate unpaid Outstanding principal amount of the Investor Certificates Notes of all adversely each Series affected Seriesthereby for which Seller has not delivered an Officer's Certificate stating that there is no Adverse Effect, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or any Supplement or of modifying in any manner the rights of the CertificateholdersNoteholders; provided, however, that no such amendment shall (i) reduce in any manner the -------- ------- amount of or delay the timing of any distributions (changes in Pay Out Events or Events of Default that decrease the likelihood of the occurrence thereof shall not be considered delays in the timing of distributions for purposes of this clause) to be made to Investor Certificateholders Noteholders or deposits of amounts to be so distributed or the amount available under any Series Enhancement without the consent of each affected Certificateholder (provided that any amendment of the terms of a Pay Out Event shall not be deemed to be within the scope of this clause (i))Noteholder, (ii) change the definition of or the manner of calculating the interest of any Investor Certificateholder Noteholder without the consent of each affected Investor CertificateholderNoteholder, (iii) reduce the aforesaid percentage required to consent to any such amendment without the consent of each Investor Certificateholder Noteholder or (iv) adversely affect the rating of any Series or Class by each Rating Agency without the consent of the Holders of Investor Certificates Noteholders of such Series or Class evidencing not less holding more than 66-66 2/3% of the aggregate unpaid Outstanding principal amount of the Investor Certificates Notes of such Series or Class. Any amendment to be effected pursuant to this paragraph shall be deemed to adversely affect all outstanding Series, other than any Series with respect to which such action shall not, as evidenced by an Opinion of Counsel for the Transferors, addressed and delivered to the Trustee, adversely affect in any material respect the interests of any Investor Certificateholder of such Series. The Trustee may, but shall not be obligated to, enter into any such amendment which affects the Trustee's rights, duties or immunities under this Agreement or otherwiseClass affected thereby.
(c) Promptly after the execution of any such amendment or consent (other than an amendment pursuant to paragraph (a)), the Trustee Issuer shall furnish notification of the substance of such amendment to the Indenture Trustee and each Investor CertificateholderNoteholder, and the Servicer shall furnish notification of the substance of such amendment to each Rating Agency and each Series Enhancer entitled thereto pursuant to the relevant SupplementEnhancer.
(d) It shall not be necessary for the consent of Investor Certificateholders Noteholders under this Section 9.1 to approve the particular form of any proposed amendment, but ----------- it shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Investor Certificateholders Noteholders shall be subject to such reasonable requirements as the Indenture Trustee may prescribe.
(e) Notwithstanding anything in this Section 9.1 to the contrary, no ----------- amendment may be made to this Agreement which would adversely affect the interests of any Series Enhancer without the consent of such Series Enhancer.
(f) Any Indenture Supplement executed in accordance with the provisions of Section 6.03 Article X of the Indenture shall not be considered an amendment to of --------- this Agreement for the purposes of this Section.Section 9.1. -----------
(fg) The Holders of Investor Certificates evidencing more than 66-Noteholders holding 66 2/3% or more of the aggregate unpaid Outstanding principal amount of the Investor Certificates Notes of each Series, Series or, with respect to any Series with two (2) or more Classes, of each Class (or, with respect to any default that does not relate to all Series, 66-66 2/3% or more of the aggregate unpaid principal amount of the Investor Certificates Outstanding Notes of each Series to which such default relates or, with respect to any such Series with two or more classesClasses, of each Class) may, on behalf of all CertificateholdersNoteholders, waive any default by the Transferors Seller or the Servicer in the performance of their obligations hereunder and its consequences, except the failure to make any distributions required to be made to Investor Certificateholders Noteholders or to make any required deposits of any amounts to be so distributed. Upon any such waiver of a past default, such default shall cease to exist, and any default arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived.
(h) The Owner Trustee may, but shall not be obligated to, enter into any such amendment which affects the Owner Trustee's rights, duties or immunities under this Agreement or otherwise. In connection with the execution of any amendment hereunder, the Owner Trustee shall be entitled to receive the Opinion of Counsel described in Section 9.2(d). -------------
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Spiegel Master Trust)
Amendment; Waiver of Past Defaults. (a) This Agreement or any Supplement may be amended from time to time (including in connection with (x) the issuance provision of a Supplemental Interestadditional Series Enhancement for the benefit of the Certificateholders of any Series (or the reduction of such Series Enhancement), (y) the addition of a Participation Interest to the Trust or (z) the designation of an Additional Transferor or Additional Account OwnerSeller) by the Servicer, the Transferors Sellers (including, if applicable, any Additional Seller being designated) and the Trustee without the consent of any of the Certificateholders, provided that (i) each Transferor Seller shall have delivered to the Trustee an Officer's Certificate to the effect that such Transferor Seller reasonably believes that such action shall will not adversely affect in any material respect the interests of any Investor Certificateholder have an Adverse Effect and (ii) the Rating Agency Condition shall have been satisfied with respect to any such amendment; provided, however, that notwithstanding the fact that clauses (i) and (ii) of this Section 13.01(a) would otherwise apply, any amendment that significantly changes the permitted activities of the Trust described in Section 2.02(e) shall require the consent of the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of the Investor Certificates of all outstanding Series.
(b) . This Agreement or any Supplement may also be amended from time to time by the Servicer, the Transferors Sellers and the Trustee, with the consent of the Holders of Investor Certificates evidencing not less than 66-2/3% of the aggregate unpaid principal amount Investor Amount of the Investor Certificates of all adversely affected Series, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or any Supplement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall (i) reduce in any manner the amount of or delay the timing of any distributions to be made to Investor Certificateholders or deposits of amounts to be so distributed or the amount available under any Series Enhancement without the consent of each affected Certificateholder (provided that any amendment of the terms of a Pay Out Event shall not be deemed to be within the scope of this clause (i))Certificateholder, (ii) change the definition of or the manner of calculating the interest of any Investor Certificateholder without the consent of each affected Investor Certificateholder, (iii) reduce the aforesaid percentage required to consent to any such amendment without the consent of each Investor Certificateholder or (iv) adversely affect the rating of any Series or Class by each Rating Agency without the consent of the Holders of Investor Certificates of such Series or Class evidencing not less than 66-2/3% of the aggregate unpaid principal amount Investor Amount of the Investor Certificates of such Series or Class. Any amendment to be effected pursuant to this paragraph shall be deemed not to adversely affect all any outstanding Series, other than any Series with respect to which such action the Sellers shall not, as evidenced by deliver an Opinion of Counsel for the TransferorsCounsel, addressed and delivered to the Trustee, adversely affect that such action will not, in any material such counsel's reasonable opinion, have an Adverse Effect with respect the interests of any Investor Certificateholder of to such Series. The Trustee may, but shall not be obligated to, enter into any such amendment which affects the Trustee's rights, duties or immunities under this Agreement or otherwise.
(c) . Promptly after the execution of any such amendment or consent (other than an amendment pursuant to paragraph (a)), the Trustee shall furnish notification of the substance of such amendment to each Investor Certificateholder, and the Servicer shall furnish notification of the substance of such amendment to each Rating Agency and each Series Enhancer entitled thereto pursuant to the relevant Supplement.
(d) Agency. It shall not be necessary for the consent of Investor Certificateholders under this Section to approve the particular form of any proposed amendment, but it shall be sufficient if such 95 consent shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Investor Certificateholders shall be subject to such reasonable requirements as the Trustee may prescribe.
(e) . Any Supplement executed in accordance with the provisions of Section 6.03 subsection 6.03(b) shall not be considered an amendment to this Agreement for the purposes of this Section.
(f) The Holders of Investor Certificates evidencing more than 66-2/3% of the aggregate unpaid principal amount of the Investor Certificates of each Series, or, with respect to any Series with two or more Classes, of each Class (or, with respect to any default that does not relate to all Series, 66-2/3% of the aggregate unpaid principal amount of the Investor Certificates of each Series to which such default relates or, with respect to any such Series with two or more classes, of each Class) may, on behalf of all Certificateholders, waive any default by the Transferors or the Servicer in the performance of their obligations hereunder and its consequences, except the failure to make any distributions required to be made to Investor Certificateholders or to make any required deposits of any amounts to be so distributed. Upon any such waiver of a past default, such default shall cease to exist, and any default arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Fleet Bank National Association /Ri/)
Amendment; Waiver of Past Defaults. (a) This Agreement or any Supplement may be amended from time to time (including in connection with (x) the issuance of a Supplemental InterestCertificate, (y) the addition conveyance of a Participation Interest Interest, allocation of assets pursuant to Section 4.06, or to change the Trust definition of Due Period, Determination Date or (z) the designation of an Additional Transferor or Additional Account OwnerDistribution Date) by the Servicer, the Transferors Seller and the Trustee Trustee, by a written instrument signed by each of them, without the consent of any of the Certificateholders, provided that (i) each Transferor an Opinion of Counsel for the Seller is addressed and delivered to the Trustee, dated the date of any such amendment, to the effect that the conditions precedent to any such amendment have been satisfied and the Seller shall have delivered to the Trustee an Officer's Certificate to Certificate, dated the effect date of any such Amendment, stating that such Transferor the Seller reasonably believes that such action amendment will not have an Adverse Effect. The designation of Additional Sellers pursuant to Section 2.09(g) shall not adversely affect in be subject to this Section 13.01 only to the extent that the supplement to this Agreement providing for such designation amends any material respect of the interests of any Investor Certificateholder and (ii) the Rating Agency Condition shall have been satisfied with respect to any such amendment; provided, however, that notwithstanding the fact that clauses (i) and (ii) terms of this Section 13.01(a) would otherwise apply, any amendment that significantly changes the permitted activities of the Trust described in Section 2.02(e) shall require the consent of the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of the Investor Certificates of all outstanding SeriesAgreement.
(b) This Agreement or any Supplement may also be amended from time to time (including in connection with the issuance of a Supplemental Certificate) by the Servicer, the Transferors Seller and the Trustee, with the consent of the Holders of Investor Certificates evidencing not less than 66-2/3% of the aggregate unpaid principal amount of the Investor Certificates of all adversely affected SeriesSeries for which the Seller has not delivered an Officer's Certificate stating that there is no Adverse Effect, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or any Supplement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall (i) reduce in any manner the amount of or delay the timing of any distributions to (changes in Amortization Events which decrease the likelihood of the occurrence thereof shall not be considered delays in the timing of distributions for purposes of this clause) be made to Investor Certificateholders or deposits of amounts to be so distributed or the amount available under any Series Enhancement without the consent of each affected Certificateholder (provided that any amendment of the terms of a Pay Out Event shall not be deemed to be within the scope of this clause (i))Certificateholder, (ii) change the definition of or the manner of calculating the interest of any Investor Certificateholder without the consent of each affected Investor Certificateholder, (iii) reduce the aforesaid percentage required to consent to any such amendment without the consent of each Investor Certificateholder or (iv) adversely affect the rating of any Series or Class by each Rating Agency without the consent of the Holders of Investor Certificates of such Series or Class evidencing not less than 66-2/3% of the aggregate unpaid principal amount of the Investor Certificates of such Series or Class. Any amendment to be effected pursuant to this paragraph shall be deemed to adversely affect all outstanding Series, other than any Series with respect to which such action shall not, as evidenced by an Opinion of Counsel for the Transferors, addressed and delivered to the Trustee, adversely affect in any material respect the interests of any Investor Certificateholder of such Series. The Trustee may, but shall not be obligated to, enter into any such amendment which affects the Trustee's rights, duties or immunities under this Agreement or otherwise.
(c) Promptly after the execution of any such amendment or consent (other than an amendment pursuant to paragraph (a)), the Trustee shall furnish notification of the substance of such amendment to each Investor Certificateholder, and the Servicer shall furnish notification of the substance of such amendment to each Rating Agency and each Series Enhancer entitled thereto pursuant to the relevant SupplementEnhancer.
(d) It shall not be necessary for the consent of Investor Certificateholders under this Section to approve the particular form of any proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Investor Certificateholders shall be subject to such reasonable requirements as the Trustee may prescribe.
(e) Notwithstanding anything in this Section to the contrary, no amendment may be made to this Agreement or any Supplement which would adversely affect in any material respect the interests of any Series Enhancer without the consent of such Series Enhancer.
(f) Any Supplement executed in accordance with the provisions of Section 6.03 shall not be considered an amendment to this Agreement for the purposes of this Section.
(fg) The Holders of Investor Certificates evidencing more than 66-2/3% of the aggregate unpaid principal amount of the Investor Certificates of each Series, or, with respect to any Series with two or more Classes, of each Class (or, with respect to any default that does not relate to all Series, 66-2/3% of the aggregate unpaid principal amount of the Investor Certificates of each Series to which such default relates or, with respect to any such Series with two or more classes, of each Class) may, on behalf of all Certificateholders, waive any default by the Transferors Seller or the Servicer in the performance of their obligations hereunder and its consequences, except the failure to make any distributions required to be made to Investor Certificateholders or to make any required deposits of any amounts to be so distributed. Upon any such waiver of a past default, such default shall cease to exist, and any default arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived.
(h) The Trustee may, but shall not be obligated to, enter into any such amendment which affects the Trustee's rights, duties or immunities under this Agreement or otherwise. In connection with the execution of any amendment hereunder, the Trustee shall be entitled to receive the Opinion described in Section 13.02(d).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Household Affinity Funding Corp)
Amendment; Waiver of Past Defaults. (a) This Agreement or any Supplement may be amended from time to time (including in connection with (xv) the issuance of a Supplemental InterestCertificate, (yw) the addition of a Participation Interest Interests to the Trust or Trust, (zx) the designation of an Additional Transferor Transferor, (y) the assumption by an Assuming Entity of the Transferor's obligations hereunder, or Additional Account Owner(z) the provision of additional Series Enhancement for the benefit of Certificateholders of any Series) by the Servicer, the Transferors Transferor and the Trustee without the consent of any of the Certificateholders, ; provided that (i) the Transferor shall have received written notice from each Rating Agency that such amendment will not have a Ratings Effect and shall have delivered copies of each such written notice to the Servicer and the Trustee, (ii) if such amendment relates to the provision of additional Series Enhancement for any Series, each Transferor shall have delivered to the Trustee and each provider of Series Enhancement an Officer's Certificate to of the effect Transferor stating that such the Transferor reasonably believes that such action shall amendment will not adversely affect in any based on the facts known to such officer at the time of such certification, have a material respect adverse effect on the interests of any Investor Certificateholder and the Certificateholders, (iiiii) in the Rating Agency Condition case of an amendment relating to the assumption by the Assuming Entity of a Transferor's obligation, all other conditions to such assumption specified herein shall have been satisfied with respect to any such amendment; provided, however, that notwithstanding the fact that clauses (i) and (iiiv) of the conditions set forth in Section 13.02(d) shall have been satisfied; provided further that an amendment pursuant to this Section 13.01(a) would otherwise apply, any amendment that significantly changes shall not effect a significant change in the permitted activities Permitted Activities of the Trust described in Section 2.02(e) shall require the consent of the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of the Investor Certificates of all outstanding SeriesTrust.
(b) This Agreement or any Supplement may also be amended from time to time by the Servicer, the Transferors Transferor and the Trustee, (A) in the case of a significant change in the Permitted Activities of the Trust, with the consent of Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Invested Amount of each outstanding Series affected by such change, and (B) in all other cases with the consent of the Holders of Investor Certificates evidencing not less than 66-66 2/3% of the aggregate unpaid principal amount of the Investor Certificates of all adversely affected Series, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or any Supplement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall (i) reduce in any manner the amount of or delay the timing of any distributions to be made to Investor Certificateholders or deposits of amounts to be so distributed or the amount available under any Series Enhancement without the consent of each affected Certificateholder (provided that any amendment of the terms of a Pay Out Event shall not be deemed to be within the scope of this clause (i))Certificateholder, (ii) change the definition of or the manner of calculating the interest of any Investor Certificateholder without the consent of each affected Investor Certificateholder, (iii) reduce the aforesaid percentage required to consent to any such amendment without the consent of each Investor Certificateholder or (iv) adversely affect the rating of any Series or Class by each any Rating Agency without the consent of the Holders of Investor Certificates of such Series or Class evidencing not less than 66-66 2/3% of the aggregate unpaid principal amount of the Investor Certificates of such Series or Class. Any amendment to be effected pursuant to this paragraph shall be deemed to adversely affect all outstanding Series, other than any Series with respect to which such action shall not, as evidenced by an Opinion of Counsel for the TransferorsTransferor, addressed and delivered to the Trustee, adversely affect in any material respect the interests of any Investor Certificateholder of such Series. The Trustee may, but shall not be obligated to, enter into any such amendment which affects the Trustee's rights, duties or immunities under this Agreement or otherwise.
(c) Promptly after the execution of any such amendment or consent (other than an amendment pursuant to paragraph (a)), the Trustee shall furnish notification of the substance of such amendment to each Investor Certificateholder, and the Servicer shall furnish notification of the substance of such amendment to each Rating Agency and each Series Enhancer entitled thereto pursuant to the relevant Supplement.
(d) It shall not be necessary for the consent of Investor Certificateholders under this Section 13.01 to approve the particular form of any proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Investor Certificateholders shall be subject to such reasonable requirements as the Trustee may prescribe.
(e) Any Supplement executed in accordance with the provisions of Section 6.03 shall not be considered an amendment to this Agreement for the purposes of this SectionSection 13.01.
(f) The Holders of Investor Certificates evidencing more than 66-66 2/3% of the aggregate unpaid principal amount of the Investor Certificates of each Series, or, with respect to any Series with two (2) or more Classes, of each Class (or, with respect to any default that does not relate to all Series, 66-66 2/3% of the aggregate unpaid principal amount of the Investor Certificates of each Series to which such default relates or, with respect to any such Series with two (2) or more classes, of each Class) may, on behalf of all Certificateholders, waive any default by the Transferors Transferor or the Servicer in the performance of their obligations hereunder and its consequences, except the failure to make any distributions required to be made to Investor Certificateholders or to make any required deposits of any amounts to be so distributed. Upon any such waiver of a past default, such default shall cease to exist, and any default arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Capital One Master Trust)
Amendment; Waiver of Past Defaults. (a) This Agreement or any Supplement may be amended from time to time (including in connection with (x) the issuance of a Supplemental Interest, (y) the addition of a Participation Interest to the Trust or (z) the designation of an Additional Transferor or Additional Account Owner) by the Servicer, the Transferors Seller and the Trustee Issuer, without the consent of any of the CertificateholdersIndenture Trustee or any Noteholder to cure any ambiguity, provided that (i) each Transferor to correct or supplement any provisions herein which may be inconsistent with any other provisions herein or to add any other provisions with respect to matters or questions raised under this Agreement which shall have delivered to not be inconsistent with the Trustee an Officer's Certificate to the effect that such Transferor reasonably believes provisions of this Agreement; provided, -------- however, that such action shall not adversely affect in any material respect the ------- interests of any Investor Certificateholder of the Noteholders. Additionally, this Agreement may be amended from time to time by the Servicer, the Seller and the Issuer by a written instrument signed by each of them, without the consent of the Indenture Trustee or any of the Noteholders; provided that (i) Seller shall have delivered -------- to the Indenture Trustee and the Owner Trustee an Officer's Certificate, dated the date of any such Amendment, stating that Seller reasonably believes that such amendment will not have an Adverse Effect and (ii) the Rating Agency Condition shall have been satisfied with respect to any such amendment; provided. Additionally, however, that notwithstanding the fact that clauses (i) preceding sentence, this Agreement will be amended by the Servicer and (ii) the Issuer at the direction of this Section 13.01(a) would otherwise apply, any amendment that significantly changes the permitted activities of the Trust described in Section 2.02(e) shall require Seller without the consent of the Holders of Investor Certificates evidencing more than 50% Indenture Trustee or any of the aggregate unpaid principal amount Noteholders or Series Enhancers to add, modify or eliminate such provisions as may be necessary or advisable in order to enable all or a portion of the Investor Certificates Issuer (1) to qualify as, and to permit an election to be made to cause the Issuer to be treated as, a "financial asset securitization investment trust" as described in the provisions of all outstanding SeriesSection 860L of the Code, and (2) to avoid the imposition of state or local income or franchise taxes imposed on the Issuer's property or its income; provided, -------- however, that (A) Seller delivers to the Indenture Trustee and the Owner Trustee ------- an Officer's Certificate to the effect that the proposed amendments meet the requirements set forth in this Section, (B) the Rating Agency Condition has been satisfied, and (C) such amendment does not affect the rights, duties or obligations of the Indenture Trustee or the Owner Trustee hereunder. The amendments which Seller may make without the consent of Noteholders or Series Enhancers pursuant to the preceding sentence may include the addition of a Seller.
(b) This Agreement or any Supplement may also be amended from time to time by the Servicer, the Transferors Seller and the TrusteeIssuer, with the consent of the Holders of Investor Certificates evidencing not less Noteholders holding more than 66-66 2/3% of the aggregate unpaid Outstanding principal amount of the Investor Certificates Notes of all adversely each Series affected Seriesthereby for which Seller has not delivered an Officer's Certificate stating that there is no Adverse Effect, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or any Supplement or of modifying in any manner the rights of the CertificateholdersNoteholders; provided, however, -------- ------- that no such amendment shall (i) reduce in any manner the amount of or delay the timing of any distributions (changes in Pay Out Events or Events of Default that decrease the likelihood of the occurrence thereof shall not be considered delays in the timing of distributions for purposes of this clause) to be made to Investor Certificateholders Noteholders or deposits of amounts to be so distributed or the amount available under any Series Enhancement without the consent of each affected Certificateholder (provided that any amendment of the terms of a Pay Out Event shall not be deemed to be within the scope of this clause (i))Noteholder, (ii) change the definition of or the manner of calculating the interest of any Investor Certificateholder Noteholder without the consent of each affected Investor Certificateholder, Noteholder or (iii) reduce the aforesaid percentage required to consent to any such amendment without the consent of each Investor Certificateholder Noteholder or (iv) adversely affect the rating of any Series or Class by each any Rating Agency without the consent of the Holders of Investor Certificates Noteholders of such Series or Class evidencing not less holding more than 66-66 2/3% of the aggregate unpaid Outstanding principal amount of the Investor Certificates Notes of such Series or Class. Any amendment to be effected pursuant to this paragraph shall be deemed to adversely affect all outstanding Series, other than any Series with respect to which such action shall not, as evidenced by an Opinion of Counsel for the Transferors, addressed and delivered to the Trustee, adversely affect in any material respect the interests of any Investor Certificateholder of such Series. The Trustee may, but shall not be obligated to, enter into any such amendment which affects the Trustee's rights, duties or immunities under this Agreement or otherwiseClass affected thereby.
(c) Promptly after the execution of any such amendment or consent (other than an amendment pursuant to paragraph (a)), the Trustee Issuer shall furnish notification of the substance of such amendment to the Indenture Trustee and each Investor CertificateholderNoteholder, and the Servicer shall furnish notification of the substance of such amendment to each Rating Agency and each Series Enhancer entitled thereto pursuant to the relevant SupplementEnhancer.
(d) It shall not be necessary for the consent of Investor Certificateholders Noteholders under this Section 9.1 to approve the particular form of any proposed amendment, but it ----------- shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Investor Certificateholders Noteholders shall be subject to such reasonable requirements as the Indenture Trustee may prescribe.
(e) Notwithstanding anything in this Section 9.1 to the contrary, no ----------- amendment may be made to this Agreement which would adversely affect in any material respect the interests of any Series Enhancer without the consent of such Series Enhancer.
(f) Any Indenture Supplement executed in accordance with the provisions of Section 6.03 Article X of the Indenture shall not be considered an amendment to of this --------- Agreement for the purposes of this Section.Section 9.1. -----------
(fg) The Holders of Investor Certificates evidencing more than 66-Noteholders holding 66 2/3% or more of the aggregate unpaid Outstanding principal amount of the Investor Certificates Notes of each Series, Series or, with respect to any Series with two (2) or more Classes, of each Class (or, with respect to any default that does not relate to all Series, 66-66 2/3% or more of the aggregate unpaid principal amount of the Investor Certificates Outstanding Notes of each Series to which such default relates or, with respect to any such Series with two or more classesClasses, of each Class) may, on behalf of all CertificateholdersNoteholders, waive any default by the Transferors Seller or the Servicer in the performance of their obligations hereunder and its consequences, except the failure to make any distributions required to be made to Investor Certificateholders Noteholders or to make any required deposits of any amounts to be so distributed. Upon any such waiver of a past default, such default shall cease to exist, and any default arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived.
(h) The Owner Trustee may, but shall not be obligated to, enter into any such amendment which affects the Owner Trustee's rights, duties or immunities under this Agreement or otherwise. In connection with the execution of any amendment hereunder, the Owner Trustee shall be entitled to receive the Opinion of Counsel described in Section 9.2(d). --------------
Appears in 1 contract
Samples: Transfer and Servicing Agreement (First Consumers Master Trust)
Amendment; Waiver of Past Defaults. (a) This ---------------------------------- Agreement or any Supplement may be amended from time to time (including in connection with (xw) the issuance of a Supplemental Interest, Certificate (yx) the addition of a Participation Interest Interests to the Trust or Trust, (zy) the designation of an Additional Transferor Depositor, or Additional Account Owner(z) the provision of additional Series Enhancement for the benefit of Certificateholders of any Series) by the Servicer, the Transferors Depositor and the Trustee without the consent of any of the Certificateholders, provided that (i) the Depositor shall have received written notice from each Transferor Rating Agency that such amendment will not have a Ratings Effect and shall have delivered copies of each such written notice to the Servicer and the Trustee and (ii) if such amendment realities to the provision of additional Series Enhancement or any Series, the Depositor shall have delivered to the Trustee and each provider of Series Enhancement an Officer's Certificate to of the effect Depositor stating that such Transferor the Depositor reasonably believes that such action shall not adversely affect in any amendment will not, based on the facts known to such officer at the time of such certification, have a material respect adverse effect on the interests of any Investor Certificateholder and (ii) the Rating Agency Condition shall have been satisfied with respect to any such amendment; providedCertificateholders. Notwithstanding the foregoing, however, that notwithstanding the fact that clauses (i) and (ii) of this Section 13.01(a) would otherwise apply, any amendment that significantly changes the permitted activities of the Trust described in Section 2.02(e) shall require Agreement may be amended without the consent of Certificateholders, any Series Enhancer and without the Holders approval of Investor Certificates evidencing more than 50% any Rating Agency, for the purpose of the aggregate unpaid principal amount of the Investor Certificates of all outstanding Seriescorrecting typographical errors, clarifying ambiguities and other similar modifications.
(b) This Agreement or any Supplement may also be amended from time to time by the Servicer, the Transferors Depositor and the Trustee, with the consent of the Holders of Investor Certificates evidencing not less more than 66-2/350% of the aggregate unpaid principal amount of the Investor Certificates of all adversely affected Series, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or any Supplement or of modifying in any manner the rights of the Certificateholders; provided, however, -------- ------- that no such amendment shall (i) reduce in any manner the amount of or delay the timing of any distributions to be made to Investor Certificateholders or deposits of amounts to be so distributed or the amount available under any Series Enhancement without the consent of each affected Certificateholder (provided that any amendment of the terms of a Pay Out Event shall not be deemed to be within the scope of this clause (i))Certificateholder, (ii) change the definition of or the manner of calculating the interest of any Investor Certificateholder without the consent of each affected Investor Certificateholder, (iii) reduce the aforesaid percentage required to consent to any such amendment without 6. the consent of each Investor Certificateholder or (iv) adversely affect the rating of any Series or Class by each any Rating Agency without the consent of the Holders of Investor Certificates of such Series or Class evidencing not less more than 66-2/350% of the aggregate unpaid principal amount of the Investor Certificates of such Series or Class. Any amendment to be effected pursuant to this paragraph shall be deemed to adversely affect all outstanding Series, other than any Series with respect to which such action shall not, as evidenced by an Opinion of Counsel for the TransferorsDepositor, addressed and delivered to the Trustee, adversely affect in any material respect the interests of any Investor Certificateholder of such Series. The Trustee may, but shall not be obligated to, enter into any such amendment which affects the Trustee's rights, duties or immunities under this Agreement or otherwise.
(c) Promptly after the execution of any such amendment or consent (other than an amendment pursuant to paragraph (a)), the Trustee shall furnish notification of the substance of such amendment to each Investor Certificateholder, and the Servicer shall furnish notification of the substance of such amendment to each Rating Agency and each Series Enhancer entitled thereto pursuant to the relevant Supplement.
(d) It shall not be necessary for the consent of Investor Certificateholders under this Section to approve the particular form of any proposed propose, amendment, but it shall be sufficient if -91- such consent shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Investor Certificateholders shall be subject to such reasonable requirements as the Trustee may prescribe.
(e) Any Supplement executed in accordance with the provisions of Section 6.03 shall not be considered an amendment to this Agreement for the purposes of this Section.
(f) The Holders of Investor Certificates evidencing more than 66-2/350% of the aggregate unpaid principal amount of the Investor Certificates of each Series, Series or, with respect to any Series with two or more Classes, of each Class (or, with respect to any default that does not relate to all Series, 66-2/350% of the aggregate unpaid principal amount of the Investor Certificates of each Series to which such default relates or, with respect to any such Series with two or more classes, of each Class) may, on behalf of all Certificateholders, waive any default by the Transferors Depositor or the Servicer in the performance of their obligations hereunder and its consequences, except the failure to make any distributions required to be made to Investor Certificateholders or to make any required deposits of any amounts to be so distributed. Upon any such waiver of a past default, such default shall cease to exist, and any default arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Asset Backed Securities Corp)
Amendment; Waiver of Past Defaults. (a) This Agreement or any Supplement may be amended from time to time (including in connection with (x) the issuance provision of a Supplemental Interestadditional Series Enhancement for the benefit of the Certificateholders of any Series (or the reduction of such Series Enhancement), (y) the addition of a Participation Interest to the Trust or (z) the designation of an Additional Transferor or Additional Account OwnerTransferor) by the Master Servicer, the Transferors (including, if applicable, any Additional Transferor being designated) and the Trustee without the consent of or notice to any of the Certificateholders, provided that (i) each Transferor shall have delivered to the Trustee an Officer's Certificate to the effect that such Transferor reasonably believes that such action shall will not adversely affect in any material respect the interests of any Investor Certificateholder have an Adverse Effect and (ii) the Rating Agency Condition shall have been satisfied with respect to any such amendment; provided, however, that notwithstanding the fact that clauses (i) and (ii) of this Section 13.01(a) would otherwise apply, any amendment that significantly changes the permitted activities of the Trust described in Section 2.02(e) shall require the consent of the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of the Investor Certificates of all outstanding Seriesbe satisfied.
(b) This Agreement or any Supplement may also be amended from time to time by the Master Servicer, the Transferors and the Trustee, with the consent of the Holders of Investor Certificates evidencing not less than 66-2/3% of the aggregate unpaid principal amount Investor Amount of the Investor Certificates of all adversely affected Series, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or any Supplement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall (i) reduce in any manner the amount of or delay the timing of any distributions to be made to Investor Certificateholders or deposits of amounts to be so distributed or the amount available under any Series Enhancement without the consent of each affected Certificateholder (provided that any amendment of the terms of a Pay Out Event shall not be deemed to be within the scope of this clause (i))Certificateholder, (ii) change the definition of or the manner of calculating the interest of any Investor Certificateholder without the consent of each affected Investor Certificateholder, (iii) reduce the aforesaid percentage required to consent to any such amendment without the consent of each Investor Certificateholder or (iv) adversely affect the rating of any Series or Class by each Rating Agency without the consent of the Holders of Investor Certificates of such Series or Class evidencing not less than 66-2/3% of the aggregate unpaid principal amount Investor Amount of the Investor Certificates of such Series or Class. Any amendment to be effected pursuant to this paragraph shall be deemed not to adversely affect all any outstanding Series, other than any Series with respect to which such action shall not, as evidenced by if the Transferors deliver an Opinion of Counsel for the TransferorsCounsel, addressed and delivered to the Trustee, adversely affect that such action will not, in any material such counsel's reasonable opinion, have an Adverse Effect with respect the interests of any Investor Certificateholder of to such Series. The Trustee may, but shall not be obligated to, enter into any such amendment which affects the Trustee's rights, duties or immunities under this Agreement or otherwise.
(c) Promptly after the execution of any such amendment or consent (other than an amendment pursuant to paragraph (a)), the Trustee shall furnish notification of the substance of such amendment to each Investor Certificateholder, and the Master Servicer shall furnish notification of the substance of such amendment to each Rating Agency and each Series Enhancer entitled thereto pursuant to the relevant SupplementAgency.
(d) It shall not be necessary for the consent of Investor Certificateholders under this Section to approve the particular form of any proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Investor Certificateholders shall be subject to such reasonable requirements as the Trustee may prescribe.and
(e) Any Supplement executed in accordance with the provisions of Section 6.03 subsection 6.03(b) shall not be considered an amendment to this Agreement for the purposes of this Section.
(f) The Holders of Investor Certificates evidencing more than 66-2/3% of the aggregate unpaid principal amount Investor Amount of the Investor Certificates of each Series, or, or with respect to any Series with two or more Classes, of each Class (or, or with respect to any default or Servicer Default that does not relate to all Series, 66-2/3% of the aggregate unpaid principal amount Investor Amount of the Investor Certificates of each Series to which such default relates or, with respect to any such Series with two or more classesClasses, of each Class) may, on behalf of all Certificateholders, waive any default or Servicer Default by the Transferors or the Master Servicer in the performance of their obligations hereunder and its consequences, except the failure to make any distributions required to be made to Investor Certificateholders or to make any required deposits of any amounts to be so distributed. Upon any such waiver of a past defaultdefault or Servicer Default, such default or Servicer Default shall cease to exist, and any default or Servicer Default arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other default or Servicer Default or impair any right consequent thereon except to the extent expressly so waived.
Appears in 1 contract
Amendment; Waiver of Past Defaults. (a) This Agreement or any Supplement may be amended from time to time (including in connection with (xv) the issuance of a Supplemental InterestCertificate, (yw) the addition of a Participation Interest Interests to the Trust or Trust, (zx) the designation of an Additional Transferor Transferor, (y) the assumption by an Assuming Entity of the Transferor’s obligations hereunder, or Additional Account Owner(z) the provision of additional Series Enhancement for the benefit of Certificateholders of any Series) by the Servicer, the Transferors Transferor and the Trustee without the consent of any of the Certificateholders, ; provided that (i) the Transferor shall have received written notice from each Rating Agency that such amendment will not have a Ratings Effect and shall have delivered copies of each such written notice to the Servicer and the Trustee, (ii) if such amendment relates to the provision of additional Series Enhancement for any Series, each Transferor shall have delivered to the Trustee and each provider of Series Enhancement an Officer's ’s Certificate to of the effect Transferor stating that such the Transferor reasonably believes that such action shall amendment will not adversely affect in any based on the facts known to such officer at the time of such certification, have a material respect adverse effect on the interests of any Investor Certificateholder and the Certificateholders, (iiiii) in the Rating Agency Condition case of an amendment relating to the assumption by the Assuming Entity of a Transferor’s obligation, all other conditions to such assumption specified herein shall have been satisfied with respect to any such amendment; provided, however, that notwithstanding the fact that clauses (i) and (iiiv) of the conditions set forth in Section 13.02(d) shall have been satisfied; provided further that an amendment pursuant to this Section 13.01(a) would otherwise apply, any amendment that significantly changes shall not effect a significant change in the permitted activities Permitted Activities of the Trust described in Section 2.02(e) shall require the consent of the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of the Investor Certificates of all outstanding SeriesTrust.
(b) This Agreement or any Supplement may also be amended from time to time by the Servicer, the Transferors Transferor and the Trustee, (A) in the case of a significant change in the Permitted Activities of the Trust, with the consent of Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Invested Amount of each outstanding Series affected by such change, and (B) in all other cases with the consent of the Holders of Investor Certificates evidencing not less than 66-66 2/3% of the aggregate unpaid principal amount of the Investor Certificates of all adversely affected Series, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or any Supplement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall (i) reduce in any manner the amount of or delay the timing of any distributions to be made to Investor Certificateholders or deposits of amounts to be so distributed or the amount available under any Series Enhancement without the consent of each affected Certificateholder (provided that any amendment of the terms of a Pay Out Event shall not be deemed to be within the scope of this clause (i))Certificateholder, (ii) change the definition of or the manner of calculating the interest of any Investor Certificateholder without the consent of each affected Investor Certificateholder, (iii) reduce the aforesaid percentage required to consent to any such amendment without the consent of each Investor Certificateholder or (iv) adversely affect the rating of any Series or Class by each any Rating Agency without the consent of the Holders of Investor Certificates of such Series or Class evidencing not less than 66-66 2/3% of the aggregate unpaid principal amount of the Investor Certificates of such Series or Class. Any amendment to be effected pursuant to this paragraph shall be deemed to adversely affect all outstanding Series, other than any Series with respect to which such action shall not, as evidenced by an Opinion of Counsel for the TransferorsTransferor, addressed and delivered to the Trustee, adversely affect in any material respect the interests of any Investor Certificateholder of such Series. The Trustee may, but shall not be obligated to, enter into any such amendment which affects the Trustee's ’s rights, duties or immunities under this Agreement or otherwise.
(c) Promptly after the execution of any such amendment or consent (other than an amendment pursuant to paragraph (a)), the Trustee shall furnish notification of the substance of such amendment to each Investor Certificateholder, and the Servicer shall furnish notification of the substance of such amendment to each Rating Agency and each Series Enhancer entitled thereto pursuant to the relevant Supplement.
(d) It shall not be necessary for the consent of Investor Certificateholders under this Section 13.01 to approve the particular form of any proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Investor Certificateholders shall be subject to such reasonable requirements as the Trustee may prescribe.
(e) Any Supplement executed in accordance with the provisions of Section 6.03 shall not be considered an amendment to this Agreement for the purposes of this SectionSection 13.01.
(f) The Holders of Investor Certificates evidencing more than 66-66 2/3% of the aggregate unpaid principal amount of the Investor Certificates of each Series, or, with respect to any Series with two (2) or more Classes, of each Class (or, with respect to any default that does not relate to all Series, 66-66 2/3% of the aggregate unpaid principal amount of the Investor Certificates of each Series to which such default relates or, with respect to any such Series with two (2) or more classes, of each Class) may, on behalf of all Certificateholders, waive any default by the Transferors Transferor or the Servicer in the performance of their obligations hereunder and its consequences, except the failure to make any distributions required to be made to Investor Certificateholders or to make any required deposits of any amounts to be so distributed. Upon any such waiver of a past default, such default shall cease to exist, and any default arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Capital One Funding, LLC)
Amendment; Waiver of Past Defaults. (a) This Agreement or any Supplement may be amended from time to time (including in connection with (x) the issuance provision of a Supplemental Interestadditional Series Enhancement for the benefit of the Certificateholders of any Series (or the reduction of such Series Enhancement), (y) the addition of a Participation Interest to the Trust or (z) the designation of an Additional Transferor or Additional Account OwnerTransferor) by the Servicer, the Transferors (including, if applicable, any Additional Transferor being designated) and the Trustee without the consent of any of the Certificateholders, provided that (i) each Transferor shall have delivered to the Trustee an Officer's Certificate to the effect that such Transferor reasonably believes that such action shall will not adversely affect in any material respect the interests of any Investor Certificateholder have an Adverse Effect and (ii) the Rating Agency Condition shall have been satisfied with respect to any such amendment; provided, however, that notwithstanding the fact that clauses (i) and (ii) of this Section 13.01(a) would otherwise apply, any amendment that significantly changes the permitted activities of the Trust described in Section 2.02(e) shall require the consent of the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of the Investor Certificates of all outstanding Series.
(b) This Agreement or any Supplement may also be amended from time to time by the Servicer, the Transferors and the Trustee, with the consent of the Holders of Investor Certificates evidencing not less than 66-2/3% of the aggregate unpaid principal amount Investor Amount of the Investor Certificates of all adversely affected Series, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or any Supplement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall (i) reduce in any manner the amount of or delay the timing of any distributions to be made to Investor Certificateholders or deposits of amounts to be so distributed or the amount available under any Series Enhancement without the consent of each affected Certificateholder (provided that any amendment of the terms of a Pay Out Event shall not be deemed to be within the scope of this clause (i))Certificateholder, (ii) change the definition of or the manner of calculating the interest of any Investor Certificateholder without the consent of each affected Investor Certificateholder, (iii) reduce the aforesaid percentage required to consent to any such amendment without the consent of each Investor Certificateholder or (iv) adversely affect the rating of any Series or Class by each Rating Agency without the consent of the Holders of Investor Certificates of such Series or Class evidencing not less than 66-2/3% of the aggregate unpaid principal amount Investor Amount of the Investor Certificates of such Series or Class. Any amendment to be effected pursuant to this paragraph shall be deemed not to adversely affect all any outstanding Series, other than any Series with respect to which such action the Transferors shall not, as evidenced by deliver an Opinion of Counsel for the TransferorsCounsel, addressed and delivered to the Trustee, adversely affect that such action will not, in any material such counsel's reasonable opinion, have an Adverse Effect with respect the interests of any Investor Certificateholder of to such Series. The Trustee may, but shall not be obligated to, enter into any such amendment which affects the Trustee's rights, duties or immunities under this Agreement or otherwise.
(c) Promptly after the execution of any such amendment or consent (other than an amendment pursuant to paragraph (a)), the Trustee shall furnish notification of the substance of such amendment to each Investor Certificateholder, and the Servicer shall furnish notification of the substance of such amendment to each Rating Agency and each Series Enhancer entitled thereto pursuant to the relevant SupplementAgency.
(d) It shall not be necessary for the consent of Investor Certificateholders under this Section to approve the particular form of any proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such 101 consents and of evidencing the authorization of the execution thereof by Investor Certificateholders shall be subject to such reasonable requirements as the Trustee may prescribe.
(e) Any Supplement executed in accordance with the provisions of Section 6.03 subsection 6.03(b) shall not be considered an amendment to this Agreement for the purposes of this Section.
(f) The Holders of Investor Certificates evidencing more than 66-2/3% of the aggregate unpaid principal amount Investor Amount of the Investor Certificates of each Series, or, or with respect to any Series with two or more Classes, of each Class (or, or with respect to any default that does not relate to all Series, 66-2/3% of the aggregate unpaid principal amount Investor Amount of the Investor Certificates of each Series to which such default relates or, with respect to any such Series with two or more classesClasses, of each Class) may, on behalf of all Certificateholders, waive any default by the Transferors or the Servicer in the performance of their obligations hereunder and its consequences, except the failure to make any distributions required to be made to Investor Certificateholders or to make any required deposits of any amounts to be so distributed. Upon any such waiver of a past default, such default shall cease to exist, and any default arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Fleet Credit Card Master Trust Ii)
Amendment; Waiver of Past Defaults. (a) This Agreement may be amended by the parties hereto from time to time prior to, or in connection with, the issuance of the first Series of Investor Certificates hereunder without the requirement of any consents or the satisfaction of any conditions set forth below. This Agreement or any Supplement may be amended from time to time (including in connection with (x) the issuance of a Supplemental InterestCertificate, (y) the addition conveyance of a Participation Interest Interest, allocation of assets pursuant to the Trust or (z) Section 4.06, the designation of an Additional Transferor Transferor, or Additional Account Ownerto change the definition of Monthly Period, Determination Date or Distribution Date) by the Servicer, the Transferors Transferor and the Trustee Trustee, by a written instrument signed by each of them, without the consent of any of the Certificateholders, provided that (i) each an Opinion of Counsel for the Transferor (which Opinion of Counsel may, as to factual matters, rely upon Officer's Certificates of the Transferor or the Servicer) is addressed and delivered to the Trustee, dated the date of any such amendment, to the effect that the conditions precedent to any such amendment have been satisfied, (ii) the Transferor shall have delivered to the Trustee an Officer's Certificate to Certificate, dated the effect date of any such Amendment, stating that such the Transferor reasonably believes that such action shall amendment will not adversely affect in any material respect the interests of any Investor Certificateholder have an Adverse Effect and (iiiii) the Rating Agency Condition shall have been satisfied with respect to any such amendment; provided, however, that notwithstanding the fact that clauses (i) and (ii) of this Section 13.01(a) would otherwise apply, any amendment that significantly changes the permitted activities of the Trust described in Section 2.02(e) shall require the consent of the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of the Investor Certificates of all outstanding Series.
(b) This Agreement or any Supplement may also be amended from time to time (including in connection with the issuance of a Supplemental Certificate) by the Servicer, the Transferors Transferor and the Trustee, with the consent of the Holders of Investor Certificates evidencing not less than 66-2/3% of the aggregate unpaid principal amount of the Investor Certificates of all adversely affected SeriesSeries for which the Transferor has not delivered an Officer's Certificate stating that there is no Adverse Effect, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or any Supplement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall (i) reduce in any manner the amount of or delay the timing of any distributions to (changes in Pay Out Events or Reinvestment Events that decrease the likelihood of the occurrence thereof shall not be considered delays in the timing of distributions for purposes of this clause) be made to Investor Certificateholders or deposits of amounts to be so distributed or the amount available under any Series Enhancement without the consent of each affected Certificateholder (provided that any amendment of the terms of a Pay Out Event shall not be deemed to be within the scope of this clause (i))Certificateholder, (ii) change the definition of or the manner of calculating the interest of any Investor Certificateholder without the consent of each affected Investor Certificateholder, (iii) reduce the aforesaid percentage required to consent to any such amendment without the consent of each Investor Certificateholder or (iv) adversely affect the rating of any Series or Class by each Rating Agency without the consent of the Holders of Investor Certificates of such Series or Class evidencing not less than 66-2/3% of the aggregate unpaid principal amount of the Investor Certificates of such Series or Class. Any amendment to be effected pursuant to this paragraph shall be deemed to adversely affect all outstanding Series, other than any Series with respect to which such action shall not, as evidenced by an Opinion of Counsel for the Transferors, addressed and delivered to the Trustee, adversely affect in any material respect the interests of any Investor Certificateholder of such Series. The Trustee may, but shall not be obligated to, enter into any such amendment which affects the Trustee's rights, duties or immunities under this Agreement or otherwise.
(c) Promptly after the execution of any such amendment or consent (other than an amendment pursuant to paragraph (a)), the Trustee shall furnish notification of the substance of such amendment to each Investor Certificateholder, and the Servicer shall furnish notification of the substance of such amendment to each Rating Agency and each Series Enhancer entitled thereto pursuant to the relevant SupplementEnhancer.
(d) It shall not be necessary for the consent of Investor Certificateholders under this Section to approve the particular form of any proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Investor Certificateholders shall be subject to such reasonable requirements as the Trustee may prescribe.
(e) Notwithstanding anything in this Section to the contrary, no amendment may be made to this Agreement or any Supplement which would adversely affect in any material respect the interests of any Series Enhancer without the consent of such Series Enhancer.
(f) Any Supplement executed in accordance with the provisions of Section 6.03 shall not be considered an amendment to this Agreement for the purposes of this Section.. 128
(fg) The Holders of Investor Certificates evidencing more than 66-2/3% of the aggregate unpaid principal amount of the Investor Certificates of each Series, Series or, with respect to any Series with two or more Classes, of each Class (or, with respect to any default that does not relate to all Series, 66-2/3% of the aggregate unpaid principal amount of the Investor Certificates of each Series to which such default relates or, with respect to any such Series with two or more classesClasses, of each Class) may, on behalf of all Certificateholders, waive any default by the Transferors Transferor or the Servicer in the performance of their obligations hereunder and its consequences, except the failure to make any distributions required to be made to Investor Certificateholders or to make any required deposits of any amounts to be so distributed. Upon any such waiver of a past default, such default shall cease to exist, and any default arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived.
(h) The Trustee may, but shall not be obligated to, enter into any such amendment which affects the Trustee's rights, duties or immunities under this Agreement or otherwise. In connection with the execution of any amendment hereunder, the Trustee shall be entitled to receive the Opinion of Counsel described in subsection 13.02(d).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (At&t Universal Funding Corp)
Amendment; Waiver of Past Defaults. (a) This Agreement or any Supplement may be amended from time to time (including in connection with (xw) the issuance of a Supplemental Interest, Certificate (yx) the addition of a Participation Interest Interests to the Trust or Trust, (zy) the designation of an Additional Transferor Depositor, or Additional Account Owner(z) the provision of additional Series Enhancement for the benefit of Certificateholders of any Series) by the Servicer, the Transferors Depositor and the Trustee without the consent of any of the Certificateholders, provided that (i) the Depositor shall have received written notice from each Transferor Rating Agency that such amendment will not have a Ratings Effect and shall have delivered copies of each such written notice to the Servicer and the Trustee and (ii) if such amendment realities to the provision of additional Series Enhancement or any Series, the Depositor shall have delivered to the Trustee and each provider of Series Enhancement an Officer's Certificate to of the effect Depositor stating that such Transferor the Depositor reasonably believes that such action shall not adversely affect in any amendment will not, based on the facts known to such officer at the time of such certification, have a material respect adverse effect on the interests of any Investor Certificateholder and (ii) the Rating Agency Condition shall have been satisfied with respect to any such amendment; providedCertificateholders. Notwithstanding the foregoing, however, that notwithstanding the fact that clauses (i) and (ii) of this Section 13.01(a) would otherwise apply, any amendment that significantly changes the permitted activities of the Trust described in Section 2.02(e) shall require Agreement may be amended without the consent of Certificateholders, any Series Enhancer and without the Holders approval of Investor Certificates evidencing more than 50% any Rating Agency, for the purpose of the aggregate unpaid principal amount of the Investor Certificates of all outstanding Seriescorrecting typographical errors, clarifying ambiguities and other similar modifications.
(b) This Agreement or any Supplement may also be amended from time to time by the Servicer, the Transferors Depositor and the Trustee, with the consent of the Holders of Investor Certificates evidencing not less more than 66-2/350% of the aggregate unpaid principal amount of the Investor Certificates of all adversely affected Series, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or any Supplement or of modifying in any manner the rights of the Certificateholders; providedPROVIDED, howeverHOWEVER, that no such amendment shall (i) reduce in any manner the amount of or delay the timing of any distributions to be made to Investor Certificateholders or deposits of amounts to be so distributed or the amount available under any Series Enhancement without the consent of each affected Certificateholder (provided that any amendment of the terms of a Pay Out Event shall not be deemed to be within the scope of this clause (i))Certificateholder, (ii) change the definition of or the manner of calculating the interest of any Investor Certificateholder without the consent of each affected Investor Certificateholder, (iii) reduce the aforesaid percentage required to consent to any such amendment without 6. the consent of each Investor Certificateholder or (iv) adversely affect the rating of any Series or Class by each any Rating Agency without the consent of the Holders of Investor Certificates of such Series or Class evidencing not less more than 66-2/350% of the aggregate unpaid principal amount of the Investor Certificates of such Series or Class. Any amendment to be effected pursuant to this paragraph shall be deemed to adversely affect all outstanding Series, other than any Series with respect to which such action shall not, as evidenced by an Opinion of Counsel for the TransferorsDepositor, addressed and delivered to the Trustee, adversely affect in any material respect the interests of any Investor Certificateholder of such Series. The Trustee may, but shall not be obligated to, enter into any such amendment which affects the Trustee's rights, duties or immunities under this Agreement or otherwise.
(c) Promptly after the execution of any such amendment or consent (other than an amendment pursuant to paragraph (a)), the Trustee shall furnish notification of the substance of such amendment to each Investor Certificateholder, and the Servicer shall furnish notification of the substance of such amendment to each Rating Agency and each Series Enhancer entitled thereto pursuant to the relevant Supplement.
(d) It shall not be necessary for the consent of Investor Certificateholders under this Section to approve the particular form of any proposed propose, amendment, but it shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Investor Certificateholders shall be subject to such reasonable requirements as the Trustee may prescribe.
(e) Any Supplement executed in accordance with the provisions of Section 6.03 shall not be considered an amendment to this Agreement for the purposes of this Section.
(f) The Holders of Investor Certificates evidencing more than 66-2/350% of the aggregate unpaid principal amount of the Investor Certificates of each Series, Series or, with respect to any Series with two or more Classes, of each Class (or, with respect to any default that does not relate to all Series, 66-2/350% of the aggregate unpaid principal amount of the Investor Certificates of each Series to which such default relates or, with respect to any such Series with two or more classes, of each Class) may, on behalf of all Certificateholders, waive any default by the Transferors Depositor or the Servicer in the performance of their obligations hereunder and its consequences, except the failure to make any distributions required to be made to Investor Certificateholders or to make any required deposits of any amounts to be so distributed. Upon any such waiver of a past default, such default shall cease to exist, and any default arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ace Securities Corp)
Amendment; Waiver of Past Defaults. (a) This Agreement or any Supplement may be amended from time to time (including in connection with (xw) the issuance of a Supplemental Interest, Certificate (yx) the addition of a Participation Interest Interests to the Trust or Trust, (zy) the designation of an Additional Transferor Depositor, or Additional Account Owner(z) the provision of additional Series Enhancement for the benefit of Certificateholders of any Series) by the Servicer, the Transferors Depositor and the Trustee without the consent of any of the Certificateholders, provided that (i) the Depositor shall have received written notice from each Transferor Rating Agency that such amendment will satisfy the Rating Agency Condition and shall have delivered copies of each such written notice to the Servicer and the Trustee and (ii) if such amendment realities to the provision of additional Series Enhancement or any Series, the Depositor shall have delivered to the Trustee and each provider -86- 92 of Series Enhancement an Officer's Certificate to of the effect Depositor stating that such Transferor the Depositor reasonably believes that such action shall not adversely affect in any amendment will not, based on the facts known to such officer at the time of such certification, have a material respect adverse effect on the interests of any Investor Certificateholder and (ii) the Rating Agency Condition shall have been satisfied with respect to any such amendment; providedCertificateholders. Notwithstanding the foregoing, however, that notwithstanding the fact that clauses (i) and (ii) of this Section 13.01(a) would otherwise apply, any amendment that significantly changes the permitted activities of the Trust described in Section 2.02(e) shall require Agreement may be amended without the consent of Certificateholders, any Series Enhancer and without the Holders approval of Investor Certificates evidencing more than 50% any Rating Agency, for the purpose of the aggregate unpaid principal amount of the Investor Certificates of all outstanding Seriescorrecting typographical errors, clarifying ambiguities and other similar modifications.
(b) This Agreement or any Supplement may also be amended from time to time by the Servicer, the Transferors Depositor and the Trustee, with the consent of the Holders of Investor Certificates evidencing not less more than 66-2/350% of the aggregate unpaid principal amount of the Investor Certificates of all adversely affected Series, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or any Supplement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall (i) reduce in any manner the amount of or delay the timing of any distributions to be made to Investor Certificateholders or deposits of amounts to be so distributed or the amount available under any Series Enhancement without the consent of each affected Certificateholder (provided that any amendment of the terms of a Pay Out Event shall not be deemed to be within the scope of this clause (i))Certificateholder, (ii) change the definition of or the manner of calculating the interest of any Investor Certificateholder without the consent of each affected Investor Certificateholder, (iii) reduce the aforesaid percentage required to consent to any such amendment without the consent of each Investor Certificateholder or (iv) adversely affect the rating of any Series or Class by each any Rating Agency without the consent of the Holders of Investor Certificates of such Series or Class evidencing not less more than 66-2/350% of the aggregate unpaid principal amount of the Investor Certificates of such Series or Class. Any amendment to be effected pursuant to this paragraph shall be deemed to adversely affect all outstanding Series, other than any Series with respect to which such action shall not, as evidenced by an Opinion of Counsel for the TransferorsDepositor, addressed and delivered to the Trustee, adversely affect in any material respect the interests of any Investor Certificateholder of such Series. The Trustee may, but shall not be obligated to, enter into any such amendment which affects the Trustee's rights, duties or immunities under this Agreement or otherwise.
(c) Promptly after the execution of any such amendment or consent (other than an amendment pursuant to paragraph (a)), the Trustee shall furnish notification of the substance of such amendment to each Investor Certificateholder, and the Servicer shall furnish notification of the substance of such amendment to each Rating Agency and each Series Enhancer entitled thereto pursuant to the relevant Supplement.
(d) It shall not be necessary for the consent of Investor Certificateholders under this Section to approve the particular form of any proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Investor Certificateholders shall be subject to such reasonable requirements as the Trustee may prescribe.
(e) Any Supplement executed in accordance with the provisions of Section 6.03 shall not be considered an amendment to this Agreement for the purposes of this Section.
(f) The Holders of Investor Certificates evidencing more than 66-2/3% of the aggregate unpaid principal amount of the Investor Certificates of each Series, or, with respect to any Series with two or more Classes, of each Class (or, with respect to any default that does not relate to all Series, 66-2/3% of the aggregate unpaid principal amount of the Investor Certificates of each Series to which such default relates or, with respect to any such Series with two or more classes, of each Class) may, on behalf of all Certificateholders, waive any default by the Transferors or the Servicer in the performance of their obligations hereunder and its consequences, except the failure to make any distributions required to be made to Investor Certificateholders or to make any required deposits of any amounts to be so distributed. Upon any such waiver of a past default, such default shall cease to exist, and any default arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Asset Backed Securities Corp)
Amendment; Waiver of Past Defaults. (a) This Agreement or any Supplement may be amended from time to time (including in connection with (x) the issuance provision of a Supplemental Interestadditional Series Enhancement for the benefit of the Certificateholders of any Series (or the reduction of such Series Enhancement), (y) the addition of a Participation Interest to the Trust or (z) the designation of an Additional Transferor or Additional Account OwnerTransferor) by the Servicer, the Transferors Transferor (including, if applicable, any Additional Transferor being designated) and the Trustee without the consent of any of the Certificateholders, provided that (i) each the Transferor shall have delivered to the Trustee an Officer's Certificate to the effect that such the Transferor reasonably believes that such action shall will not adversely affect in any material respect the interests of any Investor Certificateholder have an Adverse Effect and (ii) the Rating Agency Condition shall have been satisfied with respect to any such amendment; provided. In addition, however, that notwithstanding this Agreement or any Supplement may be amended from time to time under this subsection 13.01(a) by the fact that clauses parties hereto if the provisions set forth in clause (i) and (ii) of this Section 13.01(a) would otherwise apply, any amendment that significantly changes the permitted activities of the Trust described in Section 2.02(e) shall require preceding sentence are satisfied, but without notice to or the consent of the Holders of Investor Certificates evidencing more than 50% Certificateholders and without satisfaction of the aggregate unpaid principal amount Rating Agency Condition, for any one or more of the Investor following purposes: (A) to enable all or a portion of the Trust to qualify as, and to permit an election to be made to cause the Trust to be treated as a "financial asset securitization investment trust" under the Code (and, in connection with any such election, to modify or eliminate existing provisions relating to the intended federal income tax treatment of the Certificates and the Trust), (B) to enable the Trust to qualify as a partnership for purposes of all outstanding Seriesany state tax laws (including any amendment to Section 9.02 to read in its entirety substantially as set forth in Exhibit H hereto).
(b) This Agreement or any Supplement may also be amended from time to time by the Servicer, the Transferors Transferor and the Trustee, with the consent of the Holders of Investor Certificates evidencing not less than 66-2/3% of the aggregate unpaid principal amount Investor Amount of the Investor Certificates of all adversely affected Series, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or any Supplement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall (i) reduce in any manner the amount of or delay the timing of any distributions to be made to Investor Certificateholders or deposits of amounts to be so distributed or the amount available under any Series Enhancement without the consent of each affected Certificateholder (provided that any amendment of the terms of a Pay Out Event shall not be deemed to be within the scope of this clause (i))Certificateholder, (ii) change the definition of or the manner of calculating the interest of any Investor Certificateholder without the consent of each affected Investor Certificateholder, (iii) reduce the aforesaid percentage required to consent to any such amendment without the consent of each Investor Certificateholder or (iv) adversely affect the rating of any Series or Class by each Rating Agency without the consent of the Holders of Investor Certificates of such Series or Class evidencing not less than 66-2/3% of the aggregate unpaid principal amount Investor Amount of the Investor Certificates of such Series or Class. Any amendment to be effected pursuant to this paragraph shall be deemed not to adversely affect all any outstanding Series, other than any Series with respect to which such action the Transferor shall not, as evidenced by deliver an Opinion of Counsel for the TransferorsCounsel, addressed and delivered to the Trustee, adversely affect that such action will not, in any material such counsel's reasonable opinion, have an Adverse Effect with respect the interests of any Investor Certificateholder of to such Series. The Trustee may, but shall not be obligated to, enter into any such amendment which affects the Trustee's rights, duties or immunities under this Agreement or otherwise.
(c) Promptly after the execution of any such amendment or consent (other than an amendment pursuant to paragraph (a)), the Trustee shall furnish notification of the substance of such amendment to each Investor Certificateholder, and the Servicer shall furnish notification of the substance of such amendment to each Rating Agency and each Series Enhancer entitled thereto pursuant to the relevant SupplementAgency.
(d) It shall not be necessary for the consent of Investor Certificateholders under this Section to approve the particular form of any proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Investor Certificateholders shall be subject to such reasonable requirements as the Trustee may prescribe.
(e) Any Supplement executed in accordance with the provisions of Section 6.03 subsection 6.03(b) shall not be considered an amendment to this Agreement for the purposes of this Section.
(f) The Holders of Investor Certificates evidencing more than 66-2/3% of the aggregate unpaid principal amount Investor Amount of the Investor Certificates of each Series, or, or with respect to any Series with two or more Classes, of each Class (or, or with respect to any default that does not relate to all Series, 66-2/3% of the aggregate unpaid principal amount Investor Amount of the Investor Certificates of each Series to which such default relates or, with respect to any such Series with two or more classesClasses, of each Class) may, on behalf of all Certificateholders, waive any default by the Transferors Transferor or the Servicer in the performance of their obligations hereunder and its consequences, except the failure to make any distributions required to be made to Investor Certificateholders or to make any required deposits of any amounts to be so distributed. Upon any such waiver of a past default, such default shall cease to exist, and any default arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon thereto except to the extent expressly so waived.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Travelers Bank Credit Card Master Trust I)
Amendment; Waiver of Past Defaults. (a) This Agreement or any Supplement may be amended from time to time (including in connection with (xv) the issuance of a Supplemental InterestCertificate, (yw) the addition of a Participation Interest Interests to the Trust or Trust, (zx) the designation of an Additional Transferor Seller, (y) the assumption by an Assuming Entity of a Seller's obligations hereunder, or Additional Account Owner(z) the provision of additional Series Enhancement for the benefit of Certificateholders of any Series) by the Servicer, the Transferors Sellers and the Trustee without the consent of any of the Certificateholders, ; provided that (i) the Sellers shall have received written -------- notice from each Transferor Rating Agency that such amendment will not have a Ratings Effect and shall have delivered copies of each such written notice to the Servicer and the Trustee, (ii) if such amendment relates to the provision of additional Series Enhancement for any Series, each Seller shall have delivered to the Trustee and each provider of Series Enhancement an Officer's Certificate to the effect of such Seller stating that such Transferor Seller reasonably believes that such action shall amendment will not adversely affect in any based on the facts known to such officer at the time of such certification, have a material respect adverse effect on the interests of any Investor Certificateholder and the Certificateholders, (iiiii) in the Rating Agency Condition case of an amendment relating to the assumption by the Assuming Entity of a Seller's obligation or all other conditions to such assumption specified herein shall have been satisfied with respect to any such amendment; provided, however, that notwithstanding the fact that clauses (i) and (iiiv) of the conditions set forth in Section 13.02(d) shall have been satisfied; provided further that ---------------- an amendment pursuant to this Section 13.01(a) would otherwise apply, any amendment that significantly changes shall not effect a significant change in the permitted activities Permitted Activities of the Trust described in Section 2.02(e) shall require the consent of the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of the Investor Certificates of all outstanding SeriesTrust.
(b) This Agreement or any Supplement may also be amended from time to time by the Servicer, the Transferors Sellers and the Trustee, (A) in the case of a significant change in the Permitted Activities of the Trust, with the consent of Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Invested Amount of each outstanding Series affected by such change, and (B) in all other cases with the consent of the Holders of Investor Certificates evidencing not less than 66-2/3% of the aggregate unpaid principal amount of the Investor Certificates of all adversely affected Series, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or any Supplement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such --------- -------- amendment shall (i) reduce in any manner the amount of or delay the timing of any distributions to be made to Investor Certificateholders or deposits of amounts to be so distributed or the amount available under any Series Enhancement without the consent of each affected Certificateholder (provided that any amendment of the terms of a Pay Out Event shall not be deemed to be within the scope of this clause (i))Certificateholder, (ii) change the definition of or the manner of calculating the interest of any Investor Certificateholder without the consent of each affected Investor Certificateholder, (iii) reduce the aforesaid percentage required to consent to any such amendment without the consent of each Investor Certificateholder or (iv) adversely affect the rating of any Series or Class by each any Rating Agency without the consent of the Holders of Investor Certificates of such Series or Class evidencing not less than 66-2/3% of the aggregate unpaid principal amount of the Investor Certificates of such Series or Class. Any amendment to be effected pursuant to this paragraph shall be deemed to adversely affect all outstanding Series, other than any Series with respect to which such action shall not, as evidenced by an Opinion of Counsel for the TransferorsSellers, addressed and delivered to the Trustee, adversely affect in any material respect the interests of any Investor Certificateholder of such Series. The Trustee may, but shall not be obligated to, enter into any such amendment which affects affect the Trustee's rights, duties or immunities under this Agreement or otherwise.
(c) Promptly after the execution of any such amendment or consent (other than an amendment pursuant to paragraph (a)), the Trustee shall furnish notification of the substance of such amendment to each Investor Certificateholder, and the Servicer shall furnish notification of the substance of such amendment to each Rating Agency and each Series Enhancer entitled thereto pursuant to the relevant Supplement.
(d) It shall not be necessary for the consent of Investor Certificateholders under this Section 13.01 to approve the particular form of any proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Investor Certificateholders shall be subject to such reasonable requirements as the Trustee may prescribe.
(e) Any Supplement executed in accordance with the provisions of Section 6.03 shall not be considered an amendment to this Agreement for the purposes of this SectionSection 13.01.
(f) The Holders of Investor Certificates evidencing more than 66-2/3% of the aggregate unpaid principal amount of the Investor Certificates of each Series, or, with respect to any Series with two (2) or more Classes, of each Class (or, with respect to any default that does not relate to all Series, 66-2/3% of the aggregate unpaid principal amount of the Investor Certificates of each Series to which such default relates or, with respect to any such Series with two (2) or more classes, of each Class) may, on behalf of all Certificateholders, waive any default by the Transferors Sellers or the Servicer in the performance of their obligations hereunder and its consequences, except the failure to make any distributions required to be made to Investor Certificateholders or to make any required deposits of any amounts to be so distributed. Upon any such waiver of a past default, such default shall cease to exist, and any default arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived.
Appears in 1 contract
Amendment; Waiver of Past Defaults. (a) This Agreement ---------------------------------- or any Supplement may be amended from time to time (including including, without limitation, in connection with (xi) adding covenants, restrictions or conditions of the Seller, such further covenants, restrictions or conditions as its Board of Directors and the Trustee shall consider to be for the benefit or protection of the Investor Certificateholders, and to make the occurrence, or the occurrence and continuance, of a default in any of such additional covenants, restrictions or conditions a default or Pay-Out Event permitting the enforcement of all or any of the several remedies provided in this Agreement as herein set forth; provided, however, that in respect of any such additional covenant, -------- ------- restriction or condition such amendment may provide for a particular period of grace after default or may provide for an immediate enforcement upon such default or may limit the remedies available to the Trustee upon such default, (ii) curing any ambiguity or correcting or supplementing any provision contained herein or in any Supplement which may be defective or inconsistent with any other provision contained herein or in any Supplement or to surrender any right or power conferred upon the Seller, (iii) the issuance assumption by another entity, in accordance with the provisions of a Supplemental Interestthis Agreement, of the Seller's obligations hereunder, or (yiv) the addition provision of a Participation Interest to additional Series Enhancement for the Trust or (z) the designation benefit of an Additional Transferor or Additional Account OwnerCertificateholders of any Series) by the Servicer, the Transferors Seller and the Trustee without the consent of any of the Certificateholders, provided that (ix) each Transferor the Seller shall have delivered to the Trustee an Officer's Certificate to the effect that such Transferor the Seller reasonably believes that such action shall not adversely affect in any material respect the interests of any Investor Certificateholder and (iiy) the Rating Agency Condition shall have been satisfied with respect to any such amendment; provided, however, that notwithstanding the fact that clauses (i) and (ii) of this Section 13.01(a) would otherwise apply, any amendment that significantly changes the permitted activities of the Trust described in Section 2.02(e) shall require the consent of the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of the Investor Certificates of all outstanding Series.
(b) This Agreement or any Supplement may also be amended from time to time by the Servicer, the Transferors Seller, each Liquidity Agent, each Series Representative and the Trustee, with the consent of the Holders of Investor Certificates evidencing not less more than 66-2/350% of the aggregate unpaid principal amount of the Investor Certificates of all adversely affected Series, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or any Supplement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment -------- ------- shall (i) reduce in any manner the amount of or delay the timing of any distributions to be made to Investor Certificateholders or deposits of amounts to be so distributed or the amount available under any Series Enhancement without the consent of each affected Certificateholder (provided that any amendment of the terms of a Pay Pay-Out Event shall not be deemed to be within the scope of this clause (i)), (ii) change the definition of or the manner of calculating the interest or priority of any Investor Certificateholder without the consent of each affected Investor Certificateholder, (iii) reduce the aforesaid percentage required to consent to any such amendment without the consent of each Investor Certificateholder or (iv) adversely affect the rating of any Series or Class by each Rating Agency without the consent of all the Holders of Investor Certificates of such Series or Class evidencing not less than 66-2/3% of the aggregate unpaid principal amount of the Investor Certificates of such Series or Class. Any amendment to be effected pursuant to this paragraph shall be deemed to adversely affect all outstanding SeriesSeries adversely, other than any Series with respect to which such action shall not, as evidenced by an Opinion of Counsel for the TransferorsSeller, addressed and delivered to the Trustee, each Liquidity Agent and Series Representative, adversely affect in any material respect the interests of any Investor Certificateholder of such Series. The Trustee may, but shall not be obligated to, enter into any such amendment which affects the Trustee's rights, duties or immunities under this Agreement or otherwise.
(c) Promptly after the execution of any such amendment or consent (other than an amendment pursuant to paragraph (a)), the Trustee shall furnish notification of the substance of such amendment to each Investor Certificateholder, and the Servicer shall furnish notification of the substance of such amendment to each Rating Agency Agency, each Series Enhancer and each Series Enhancer Representative entitled thereto pursuant to the relevant Supplement.
(d) It shall not be necessary for the consent of Investor Certificateholders under this Section to approve the particular form of any proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Investor Certificateholders shall be subject to such reasonable requirements as the Trustee may prescribe.
(e) Any Supplement executed solely in accordance with the provisions of Section 6.03 shall not be considered an amendment to this Agreement for the purposes of this Section.
(f) The Holders of Investor Certificates evidencing more than 66-2/350% of the aggregate unpaid principal amount of the Investor Certificates of each Series, the Liquidity Agent and the Series Representative, or, with respect to any Series with two or more Classes, of each such Class (or, with respect to any default that does not relate to all Series, 66-2/350% of the aggregate unpaid principal amount of the Investor Certificates of each Series to which such default relates or, with respect to any such Series with two or more classesClasses, of each Class) each Liquidity Agent and Series Representative may, on behalf of all Certificateholders, waive any default by the Transferors Seller or the Servicer in the performance of their obligations hereunder and its consequences, except the failure to make any distributions required to be made to Investor Certificateholders or to make any required deposits of any amounts to be so distributed. Upon any such waiver of a past default, such default shall cease to exist, and any default arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived.
Appears in 1 contract
Amendment; Waiver of Past Defaults. (a) This Agreement or any Supplement may be amended from time to time (including in connection with (x) the issuance of a Supplemental Interest, (y) the addition of a Participation Interest to the Trust or (z) the designation of an Additional Transferor or Additional Account Owner) by the Servicer, the Transferors Seller and the Trustee Issuer, without the consent of any of the CertificateholdersIndenture Trustee or any Noteholder to cure any ambiguity, provided that (i) each Transferor to correct or supplement any provisions herein which may be inconsistent with any other provisions herein or to add any other provisions with respect to matters or questions raised under this Agreement which shall have delivered to not be inconsistent with the Trustee an Officer's Certificate to the effect that such Transferor reasonably believes provisions of this Agreement; provided, -------- however, that such action shall not adversely affect in any material respect the ------- interests of any Investor Certificateholder of the Noteholders. Additionally, this Agreement may be amended from time to time by the Servicer, the Seller and the Issuer by a written instrument signed by each of them, without the consent of the Indenture Trustee or any of the Noteholders; provided that (i) Seller shall have delivered to the -------- Indenture Trustee and the Owner Trustee an Officer's Certificate, dated the date of any such Amendment, stating that Seller reasonably believes that such amendment will not have an Adverse Effect and (ii) the Rating Agency Condition shall have been satisfied with respect to any such amendment. Additionally, notwithstanding the preceding sentence, this Agreement will be amended by the Servicer and the Issuer at the direction of Seller without the consent of the Indenture Trustee or any of the Noteholders or Series Enhancers to add, modify or eliminate such provisions as may be necessary or advisable in order to enable all or a portion of the Issuer (1) to qualify as, and to permit an election to be made to cause the Issuer to be treated as, a "financial asset securitization investment trust" as described in the provisions of Section 860L of the Code, and (2) to avoid the imposition of state or local income or franchise taxes imposed on the Issuer's property or its income; provided, however, that notwithstanding (A) Seller delivers to the fact Indenture Trustee and the -------- ------- Owner Trustee an Officer's Certificate to the effect that clauses the proposed amendments meet the requirements set forth in this Section, (iB) the Rating Agency Condition has been satisfied, and (iiC) of this Section 13.01(a) would otherwise applysuch amendment does not affect the rights, any amendment that significantly changes the permitted activities duties or obligations of the Trust described in Section 2.02(e) shall require Indenture Trustee or the Owner Trustee hereunder. The amendments which Seller may make without the consent of Noteholders or Series Enhancers pursuant to the Holders preceding sentence may include the addition of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of the Investor Certificates of all outstanding Seriesa Seller.
(b) This Agreement or any Supplement may also be amended from time to time by the Servicer, the Transferors Seller and the TrusteeIssuer, with the consent of the Holders of Investor Certificates evidencing not less Noteholders holding more than 66-66 2/3% of the aggregate unpaid Outstanding principal amount of the Investor Certificates Notes of all adversely each Series affected Seriesthereby for which Seller has not delivered an Officer's Certificate stating that there is no Adverse Effect, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or any Supplement or of modifying in any manner the rights of the CertificateholdersNoteholders; provided, however, -------- ------- that no such amendment shall (i) reduce in any manner the amount of or delay the timing of any distributions (changes in Pay Out Events or Events of Default that decrease the likelihood of the occurrence thereof shall not be considered delays in the timing of distributions for purposes of this clause) to be made to Investor Certificateholders Noteholders or deposits of amounts to be so distributed or the amount available under any Series Enhancement without the consent of each affected Certificateholder (provided that any amendment of the terms of a Pay Out Event shall not be deemed to be within the scope of this clause (i))Noteholder, (ii) change the definition of or the manner of calculating the interest of any Investor Certificateholder Noteholder without the consent of each affected Investor Certificateholder, Noteholder or (iii) reduce the aforesaid percentage required to consent to any such amendment without the consent of each Investor Certificateholder Noteholder or (iv) adversely affect the rating of any Series or Class by each any Rating Agency without the consent of the Holders of Investor Certificates Noteholders of such Series or Class evidencing not less holding more than 66-66 2/3% of the aggregate unpaid Outstanding principal amount of the Investor Certificates Notes of such Series or Class. Any amendment to be effected pursuant to this paragraph shall be deemed to adversely affect all outstanding Series, other than any Series with respect to which such action shall not, as evidenced by an Opinion of Counsel for the Transferors, addressed and delivered to the Trustee, adversely affect in any material respect the interests of any Investor Certificateholder of such Series. The Trustee may, but shall not be obligated to, enter into any such amendment which affects the Trustee's rights, duties or immunities under this Agreement or otherwiseClass affected thereby.
(c) Promptly after the execution of any such amendment or consent (other than an amendment pursuant to paragraph (a)), the Trustee Issuer shall furnish notification of the substance of such amendment to the Indenture Trustee and each Investor CertificateholderNoteholder, and the Servicer shall furnish notification of the substance of such amendment to each Rating Agency and each Series Enhancer entitled thereto pursuant to the relevant SupplementEnhancer.
(d) It shall not be necessary for the consent of Investor Certificateholders Noteholders under this Section 9.1 to approve the particular form of any proposed amendment, but it ----------- shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Investor Certificateholders Noteholders shall be subject to such reasonable requirements as the Indenture Trustee may prescribe.
(e) Notwithstanding anything in this Section 9.1 to the contrary, no ----------- amendment may be made to this Agreement which would adversely affect in any material respect the interests of any Series Enhancer without the consent of such Series Enhancer.
(f) Any Indenture Supplement executed in accordance with the provisions of Section 6.03 Article X of the Indenture shall not be considered an amendment to of this --------- Agreement for the purposes of this Section.Section 9.1. -----------
(fg) The Holders of Investor Certificates evidencing more than 66-Noteholders holding 66 2/3% or more of the aggregate unpaid Outstanding principal amount of the Investor Certificates Notes of each Series, Series or, with respect to any Series with two (2) or more Classes, of each Class (or, with respect to any default that does not relate to all Series, 66-66 2/3% or more of the aggregate unpaid principal amount of the Investor Certificates Outstanding Notes of each Series to which such default relates or, with respect to any such Series with two or more classesClasses, of each Class) may, on behalf of all CertificateholdersNoteholders, waive any default by the Transferors Seller or the Servicer in the performance of their obligations hereunder and its consequences, except the failure to make any distributions required to be made to Investor Certificateholders Noteholders or to make any required deposits of any amounts to be so distributed. Upon any such waiver of a past default, such default shall cease to exist, and any default arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived.
(h) The Owner Trustee may, but shall not be obligated to, enter into any such amendment which affects the Owner Trustee's rights, duties or immunities under this Agreement or otherwise. In connection with the execution of any amendment hereunder, the Owner Trustee shall be entitled to receive the Opinion of Counsel described in Section 9.2(d). --------------
Appears in 1 contract
Amendment; Waiver of Past Defaults. (a) This Agreement or any Supplement may be amended from time to time (including in connection with (x) the issuance of a Supplemental Interest, (y) the addition of a Participation Interest to the Trust or (z) the designation of an Additional Transferor or Additional Account Owner) by the Servicer, the Transferors Transferor and the Trustee Issuer, without the consent of any of the CertificateholdersNoteholders, provided that (i) each Transferor shall have delivered to cure any ambiguity, to correct or supplement any provisions herein which may be inconsistent with any other provisions herein, to add one or more new identifying code numbers to the Trustee an Officer's Certificate definition of Creation Date or the first paragraph of Section 2.6(d) or to add any other provisions with respect to matters or questions raised under this Agreement which shall not be inconsistent with the provisions of this Agreement, including any matters arising under Section 2.5(d) necessary to effect that such Transferor reasonably believes the conveyance contemplated thereunder; provided, however, that such action shall not adversely affect in any material respect the interests of any Investor Certificateholder of the Noteholders; and, provided further, that an amendment pursuant to this Section 9.1(a) shall not effect a significant change in the Permitted Activities of the Issuer. Prior to executing any amendment in accordance with this Section 9.1(a), the Indenture Trustee and (iithe Owner Trustee shall receive and shall be permitted to rely upon an Opinion of Counsel to the effect that the conditions and requirements of this Section 9.1(a) the Rating Agency Condition shall have been satisfied with respect (without implying that such a rating confirmation is required to be obtained, such Opinion of Counsel may rely as to any rated Series solely on a rating confirmation from the Rating Agencies that such amendment; provided, however, that notwithstanding amendment shall not cause a reduction or withdrawal of the fact that clauses (i) and (ii) rating of any outstanding Series of Notes). The Transferor shall deliver prior written notice of any amendment pursuant to this Section 13.01(a9.1(a) would otherwise apply, any amendment that significantly changes the permitted activities of the Trust described in Section 2.02(e) shall require the consent of the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of the Investor Certificates of all outstanding Seriesto each Rating Agency.
(b) This Agreement or any Supplement may also be amended from time to time by the Servicer, the Transferors Transferor and the TrusteeIssuer, with without the consent of the Holders of Investor Certificates evidencing not less than 66-2/3% any of the aggregate unpaid principal amount of the Investor Certificates of all adversely affected SeriesNoteholders, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or any Supplement or of modifying in any manner the rights of the CertificateholdersNoteholders of any Series then issued and outstanding; provided, however, that (i) the Servicer shall have provided an Opinion of Counsel to the Indenture Trustee to the effect that such amendment will not materially and adversely affect the interests of the Noteholders of any outstanding Series, which Opinion of Counsel may rely as to any rated Series solely on the rating confirmation referred to in clause (iii) below (or 100% of the Class of Noteholders so affected shall have consented), (ii) such amendment shall not, as evidenced by an Opinion of Counsel, cause any outstanding Series as to which an opinion that it was debt was given on its Closing Date to fail to qualify as debt for Federal income tax purposes, cause the Issuer to be characterized for Federal income tax purposes as an association taxable as a corporation or otherwise have any material adverse impact on the Federal income tax characterization of any outstanding Series of Notes or the Federal income taxation of any Noteholder or any Note Owner and (iii) the Rating Agency Condition shall have been satisfied; and, provided further, that such amendment shall not effect a significant change in the Permitted Activities of the Issuer or reduce in any manner the amount of, or delay the timing of, or change the priority of, distributions which are required to be made on any Note of such Series without the consent of the related Noteholder or change the definition of or the manner of calculating the interest of any Note of such Series without the consent of the related Noteholder or reduce the required percentage for consents to amendments pursuant to Section 9.1(c) without the consent of each affected Noteholder.
(c) This Agreement may also be amended from time to time by the Servicer, the Transferor and the Issuer, with the consent of the Holders of Notes aggregating not less than 66-2/3% of the Invested Amount of all Series adversely affected, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or modifying in any manner the rights of the Noteholders of any Series then issued and outstanding; provided, however, that no such amendment shall (i) reduce in any manner the amount of of, or delay the timing of any of, distributions which are required to be made to Investor Certificateholders or deposits on any Note of amounts to be so distributed or the amount available under any such Series Enhancement without the consent of each affected Certificateholder (provided that any amendment of the terms of a Pay Out Event shall not be deemed to be within the scope of this clause (i))related Noteholders, (ii) change the definition of or the manner of calculating the interest Invested Amount, the Invested Percentage, the applicable available amount under any Enhancement or the Investor Default Amount of any Investor Certificateholder such Series without the consent of each affected Investor Certificateholder, the related Noteholders or (iii) reduce the aforesaid percentage required to consent to any such amendment without the consent of each Investor Certificateholder or (iv) adversely affect the rating of any Series or Class by each Rating Agency amendment, without the consent of the Holders of Investor Certificates of such Series or Class evidencing not less than 66-2/3% of the aggregate unpaid principal amount of the Investor Certificates of such Series or Classrelated Noteholders. Any amendment to be effected pursuant to this paragraph Section 9.1(c) shall be deemed to adversely affect all outstanding Series, other than any require that each Rating Agency rating the affected Series with respect to which confirm that such action shall not, as evidenced by an Opinion amendment will not cause a reduction or withdrawal of Counsel for the Transferors, addressed and delivered to the Trustee, adversely affect in any material respect the interests rating of any Investor Certificateholder outstanding Series of such Series. The Trustee may, but shall not be obligated to, enter into any such amendment which affects the Trustee's rights, duties or immunities under this Agreement or otherwiseNotes.
(cd) Promptly after the execution of any such amendment or consent (other than an amendment pursuant to paragraph (a)Section 9.1(a), the Trustee Issuer shall furnish written notification (or in the case of Bearer Notes, publication notice in the manner described in the related Indenture Supplement) of the substance of such amendment to each Noteholder, and the Servicer shall furnish written notification of the substance of such amendment to each Investor Certificateholder, any related Enhancement Provider and the Servicer shall furnish notification of the substance of such amendment to each Rating Agency and each Series Enhancer entitled thereto pursuant to the relevant SupplementAgency.
(de) It shall not be necessary for the consent of Investor Certificateholders Noteholders under this Section 9.1 to approve the particular form of any proposed amendment, but it shall be sufficient if such consent Noteholders shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Investor Certificateholders Noteholders shall be subject to such reasonable requirements as the Trustee may prescribe.
(ef) Any Supplement Assignment or Reassignment regarding the addition to or removal of Receivables from the Issuer respectively, as provided in Sections 2.6 and 2.7, respectively, executed in accordance with the provisions of Section 6.03 hereof shall not be considered an amendments to this Agreement, including, without limitation, for the purpose of Sections 9.1(a), (b), (c) and (g).
(g) Prior to the execution of any amendment to this Agreement, the Indenture Trustee shall be entitled to receive and rely upon an Opinion of Counsel substantially in the form of Exhibit F-2. The Indenture Trustee may, but shall not be obligated to, enter into any such amendment which affects the Indenture Trustee's own rights, duties or immunities under this Agreement for the purposes of this Sectionor otherwise.
(fh) The Holders of Investor Certificates evidencing more than 66-2/3% of Notwithstanding anything in this Section 9.1 to the aggregate unpaid principal amount of the Investor Certificates of each Seriescontrary, or, with respect this Agreement shall not be amended to any Series with two or more Classes, of each Class (or, with respect to any default that does not relate to all Series, 66-2/3% of the aggregate unpaid principal amount of the Investor Certificates of each Series to which such default relates or, with respect to any such Series with two or more classes, of each Class) may, on behalf of all Certificateholders, waive any default by the Transferors or the Servicer in the performance of their obligations hereunder and its consequences, except the failure to make any distributions required to be made to Investor Certificateholders replace DC Funding as Transferor or to make add any required deposits of any amounts to be so distributed. Upon any such waiver of a past default, such default Person as Transferor unless the Rating Agency Condition shall cease to exist, and any default arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivedsatisfied.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Fnanb Credit Card Master Trust)
Amendment; Waiver of Past Defaults. (a) This Agreement or any Supplement may be amended from time to time (including in connection with (x) the issuance provision of a Supplemental Interestadditional Series Enhancement for the benefit of the Certificateholders of any Series (or the reduction of such Series Enhancement), (y) the addition of a Participation Interest to the Trust or (z) the designation of an Additional Transferor or Additional Account OwnerTransferor) by the Servicer, the Transferors Transferor (including, if applicable, any Additional Transferor being designated) and the Trustee without the consent of any of the Certificateholders, provided PROVIDED that (i) each the Transferor shall have delivered to the Trustee an Officer's Certificate to the effect that such the Transferor reasonably believes that such action shall will not adversely affect in any material respect the interests of any Investor Certificateholder have an Adverse Effect and (ii) the Rating Agency Condition shall have been satisfied with respect to any such amendment; provided. In addition, however, that notwithstanding this Agreement or any Supplement may be amended from time to time under this subsection 13.01(a) by the fact that clauses parties hereto if the provisions set forth in clause (i) and (ii) of this Section 13.01(a) would otherwise apply, any amendment that significantly changes the permitted activities of the Trust described in Section 2.02(e) shall require preceding sentence are satisfied, but without notice to or the consent of the Holders of Investor Certificates evidencing more than 50% Certificateholders and without satisfaction of the aggregate unpaid principal amount Rating Agency Condition, for any one or more of the Investor following purposes: (A) to enable all or a portion of the Trust to qualify as, and to permit an election to be made to cause the Trust to be treated as a "financial asset securitization investment trust" under the Code (and, in connection with any such election, to modify or eliminate existing provisions relating to the intended federal income tax treatment of the Certificates and the Trust), (B) to enable the Trust to qualify as a partnership for purposes of all outstanding Series.any state tax laws (including any amendment to Section 9.02 to read in its entirety substantially as set forth in Exhibit H hereto),
(b) This Agreement or any Supplement may also be amended from time to time by the Servicer, the Transferors Transferor and the Trustee, with the consent of the Holders of Investor Certificates evidencing not less than 66-2/3% of the aggregate unpaid principal amount Investor Amount of the Investor Certificates of all adversely affected Series, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or any Supplement or of modifying in any manner the rights of the Certificateholders; providedPROVIDED, howeverHOWEVER, that no such amendment shall (i) reduce in any manner the amount of or delay the timing of any distributions to be made to Investor Certificateholders or deposits of amounts to be so distributed or the amount available under any Series Enhancement without the consent of each affected Certificateholder (provided that any amendment of the terms of a Pay Out Event shall not be deemed to be within the scope of this clause (i))Certificateholder, (ii) change the definition of or the manner of calculating the interest of any Investor Certificateholder without the consent of each affected Investor Certificateholder, (iii) reduce the aforesaid percentage required to consent to any such amendment without the consent of each Investor Certificateholder or (iv) adversely affect the rating of any Series or Class by each Rating Agency without the consent of the Holders of Investor Certificates of such Series or Class evidencing not less than 66-2/3% of the aggregate unpaid principal amount Investor Amount of the Investor Certificates of such Series or Class. Any amendment to be effected pursuant to this paragraph shall be deemed not to adversely affect all any outstanding Series, other than any Series with respect to which such action the Transferor shall not, as evidenced by deliver an Opinion of Counsel for the TransferorsCounsel, addressed and delivered to the Trustee, adversely affect that such action will not, in any material such counsel's reasonable opinion, have an Adverse Effect with respect the interests of any Investor Certificateholder of to such Series. The Trustee may, but shall not be obligated to, enter into any such amendment which affects the Trustee's rights, duties or immunities under this Agreement or otherwise.
(c) Promptly after the execution of any such amendment or consent (other than an amendment pursuant to paragraph (a)), the Trustee shall furnish notification of the substance of such amendment to each Investor Certificateholder, and the Servicer shall furnish notification of the substance of such amendment to each Rating Agency and each Series Enhancer entitled thereto pursuant to the relevant SupplementAgency.
(d) It shall not be necessary for the consent of Investor Certificateholders under this Section to approve the particular form of any proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Investor Certificateholders shall be subject to such reasonable requirements as the Trustee may prescribe.
(e) Any Supplement executed in accordance with the provisions of Section 6.03 subsection 6.03(b) shall not be considered an amendment to this Agreement for the purposes of this Section.
(f) The Holders of Investor Certificates evidencing more than 66-2/3% of the aggregate unpaid principal amount Investor Amount of the Investor Certificates of each Series, or, or with respect to any Series with two or more Classes, of each Class (or, or with respect to any default that does not relate to all Series, 66-2/3% of the aggregate unpaid principal amount Investor Amount of the Investor Certificates of each Series to which such default relates or, with respect to any such Series with two or more classesClasses, of each Class) may, on behalf of all Certificateholders, waive any default by the Transferors Transferor or the Servicer in the performance of their obligations hereunder and its consequences, except the failure to make any distributions required to be made to Investor Certificateholders or to make any required deposits of any amounts to be so distributed. Upon any such waiver of a past default, such default shall cease to exist, and any default arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon thereto except to the extent expressly so waived.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Travelers Bank Credit Card Master Trust I)
Amendment; Waiver of Past Defaults. (a) This Agreement may be amended by the parties hereto from time to time prior to, or in connection with, the issuance of the first Series of Notes hereunder without the requirement of any Supplement consents or the satisfaction of any conditions set forth below. This Agreement may be amended from time to time (including in connection with (x) the issuance of a Supplemental Interest, (y) the addition of a Participation Interest to the Trust or (z) the designation of an Additional Transferor or Additional Account Owner) by the Servicer, the Transferors Transferor and the Trustee Trust, by a written instrument signed by each of them, without the consent of the Indenture Trustee or any of the CertificateholdersNoteholders, provided that (i) each the Transferor shall have delivered to the Trustee Trustees an Officer's Certificate to Certificate, dated the effect date of any such amendment, stating that such the Transferor reasonably believes that such action shall amendment will not adversely have an Adverse Effect, such amendment does not affect in the rights, duties or obligations of either the Trustee, Servicer or any material respect the interests of any Investor Certificateholder Successor Servicer hereunder and (ii) the Rating Agency Condition shall have been satisfied with respect to any such amendment. Additionally, notwithstanding the preceding sentence, this Agreement may be amended by the Servicer and the Trust at the direction of the Transferor without the consent of the Indenture Trustee or any of the Noteholders or Series Enhancers to add, modify or eliminate such provisions as may be necessary or advisable in order to enable all or a portion of the Trust (i) to qualify as, and to permit an election to be made to cause the Trust to be treated as, a "financial asset securitization investment trust" as described in the provisions of Section 860L of the Code, and (ii) to avoid the imposition of state or local income or franchise taxes imposed on the Trust's property or its income; provided, however, that notwithstanding the fact that clauses (i) and (ii) of the Transferor delivers to the Trustees an Officer's Certificate to the effect that the proposed amendments meet the requirements set forth in this Section 13.01(a) would otherwise apply, any amendment that significantly changes the permitted activities of the Trust described in Section 2.02(e) shall require the consent of the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of the Investor Certificates of all outstanding Series.
(b) This Agreement or any Supplement may also be amended from time to time by the Servicer, the Transferors and the Trustee, with the consent of the Holders of Investor Certificates evidencing not less than 66-2/3% of the aggregate unpaid principal amount of the Investor Certificates of all adversely affected Series, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or any Supplement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall (i) reduce in any manner the amount of or delay the timing of any distributions to be made to Investor Certificateholders or deposits of amounts to be so distributed or the amount available under any Series Enhancement without the consent of each affected Certificateholder (provided that any amendment of the terms of a Pay Out Event shall not be deemed to be within the scope of this clause (i))subsection, (ii) change the definition of or the manner of calculating the interest of any Investor Certificateholder without the consent of each affected Investor Certificateholder, (iii) reduce the aforesaid percentage required to consent to any such amendment without the consent of each Investor Certificateholder or (iv) adversely affect the rating of any Series or Class by each Rating Agency without the consent of the Holders of Investor Certificates of such Series or Class evidencing not less than 66-2/3% of the aggregate unpaid principal amount of the Investor Certificates of such Series or Class. Any amendment to be effected pursuant to this paragraph Condition shall be deemed to adversely affect all outstanding Series, other than any Series with respect to which such action shall not, as evidenced by an Opinion of Counsel for the Transferors, addressed and delivered to the Trustee, adversely affect in any material respect the interests of any Investor Certificateholder of such Series. The Trustee may, but shall not be obligated to, enter into any such amendment which affects the Trustee's rights, duties or immunities under this Agreement or otherwise.
(c) Promptly after the execution of any such amendment or consent (other than an amendment pursuant to paragraph (a)), the Trustee shall furnish notification of the substance of such amendment to each Investor Certificateholder, and the Servicer shall furnish notification of the substance of such amendment to each Rating Agency and each Series Enhancer entitled thereto pursuant to the relevant Supplement.
(d) It shall not be necessary for the consent of Investor Certificateholders under this Section to approve the particular form of any proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Investor Certificateholders shall be subject to such reasonable requirements as the Trustee may prescribe.
(e) Any Supplement executed in accordance with the provisions of Section 6.03 shall not be considered an amendment to this Agreement for the purposes of this Section.
(f) The Holders of Investor Certificates evidencing more than 66-2/3% of the aggregate unpaid principal amount of the Investor Certificates of each Series, or, with respect to any Series with two or more Classes, of each Class (or, with respect to any default that does not relate to all Series, 66-2/3% of the aggregate unpaid principal amount of the Investor Certificates of each Series to which such default relates or, have been satisfied with respect to any such Series with two amendment and (iii) such amendment does not affect the rights, duties or more classesobligations of either Trustee, of each Class) may, on behalf of all Certificateholders, waive Servicer or any default by the Transferors or the Successor Servicer in the performance of their obligations hereunder and its consequences, except the failure to make any distributions required to be made to Investor Certificateholders or to make any required deposits of any amounts to be so distributed. Upon any such waiver of a past default, such default shall cease to exist, and any default arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivedhereunder.
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