Common use of Back-up Servicer to Act; Appointment of Successor Clause in Contracts

Back-up Servicer to Act; Appointment of Successor. (a) On and after the time the Servicer receives a notice of termination pursuant to Section 7.01 or fails to receive a Servicer Extension Notice pursuant to Section 8.04, or the Indenture Trustee receives the resignation of the Servicer evidenced by an Opinion of Counsel pursuant to Section 5.21, or the Servicer is removed as Servicer pursuant to this Article VII, in which event the Indenture Trustee shall promptly notify the Rating Agencies, except as otherwise provided in Section 7.01, the Back-up Servicer shall be the successor in all respects to the Servicer in its capacity as servicer under this Agreement and the transactions set forth or provided for herein and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof arising on or after the date of succession; provided, however, that the Back-up Servicer shall not be liable for any actions or the representations and warranties of any Servicer prior to it and including, without limitation, the obligations of the Servicer set forth in Sections 2.06 and 4.02 hereof; provided, further, that the Back-up Servicer shall be entitled to be indemnified by American Business Credit, Inc., in its capacity as the Servicer, in accordance with Section 5.19 and/or from the Distribution Accounts pursuant to Section 8.02 of the Indenture for any losses or liabilities resulting from the actions of any prior servicer, unless such losses or liabilities result from the gross negligence, willful misconduct or reckless disregard of the Back-up Servicer. The Back-up Servicer, as successor servicer, shall be obligated to pay Compensating Interest pursuant to Section 6.05 in any event and to make advances pursuant to Section 5.18 unless, and only to the extent the Back-up Servicer determines reasonably and in good faith that such advances would not be recoverable pursuant to Section 5.04, such determination to be evidenced by a certification of a Responsible Officer of the Back-up Servicer delivered to the Note Insurer. (b) Notwithstanding the above, the Indenture Trustee may, if the Back-up Servicer shall be unwilling to so act, or shall, if the Back-up Servicer is unable to so act or if the Majority Noteholders with the consent of the Note Insurer or the Note Insurer so requests in writing to the Indenture Trustee, appoint, pursuant to such direction of the Majority Noteholders and Note Insurer or the Note Insurer, or if no such direction is provided to the Indenture Trustee, pursuant to the provisions set forth in Section 7.02(c), or petition a court of competent jurisdiction to appoint, any established mortgage loan servicing institution acceptable to the Note Insurer that has a net worth of not less than $15,000,000 as the successor to the Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Servicer hereunder. Notwithstanding any other provisions of this Agreement, prior to the Back-up Servicer becoming the Servicer hereunder, the Depositor and the Servicer intend to revise this Agreement to remove certain provisions not applicable to a substitute servicer and to revise and add certain provisions to make this Agreement applicable to a substitute servicer. Without limitation, these provisions include Sections 2.08; 3.01; 4.02; 5.03(d); 5.04; 5.06; 5.08; 5.13; 5.18(b); 7.01; and 8.04; and, with respect to Section 9.05, the Back-up Servicer, prior to becoming the Servicer hereunder, will require reimbursement of any of the Collateral Agent's expenses it is required to pay pursuant to Section 9.05. Such reimbursement shall be paid by a person other than the Collateral Agent. In no event will the Collateral Agent or the Indenture Trustee assume, nor do any of the parties hereto anticipate that the Collateral Agent or the Indenture Trustee will assume, any added responsibilities as a result of the removal, revision or addition of any provisions, including, without limitation, to the Sections listed herein upon the Back-up Servicer becoming the Servicer hereunder. These revisions may be made only upon the agreement of the Servicer, the Depositor and the Indenture Trustee, with the prior written consent of the Note Insurer, in all cases in accordance with Section 10.03 hereof; provided, however, should it become necessary to appoint a successor servicer hereunder and no agreement is reached providing for the Back-up Servicer to become Servicer hereunder, then the services of the Back-up Servicer will be terminated and the Back-up Servicer will no longer be entitled to the Back-up Servicing Fee. (c) In the event the Back-up Servicer is the successor Servicer, it shall be entitled to the same Servicing Compensation (including the Servicing Fee as adjusted pursuant to the definition thereof) and other funds pursuant to Section 5.08 hereof as the Servicer if the Servicer had continued to act as servicer hereunder. In the event the Back-up Servicer is unable or unwilling to act as successor Servicer, or, if the Note Insurer so directs, the Indenture Trustee shall appoint such other entity as may be designated by the Note Insurer or, if the Note Insurer shall not have designated another entity within 30 days following written notice to the Trustee and the Note Insurer by the Back-up Servicer that it will not serve as successor servicer, then, the Indenture Trustee shall solicit, by public announcement, bids from housing and home finance institutions, banks and mortgage servicing institutions meeting the qualifications set forth above. Such public announcement shall specify that the successor servicer shall be entitled to the full amount of the aggregate Servicing Fees hereunder as servicing compensation, together with the other Servicing Compensation. Within thirty (30) days after any such public announcement, the Indenture Trustee shall negotiate and effect the sale, transfer and assignment of the servicing rights and responsibilities hereunder to the qualified party submitting the highest qualifying bid. The Indenture Trustee shall deduct from any sum received by the Indenture Trustee from the successor to the Servicer in respect of such sale, transfer and assignment all costs and expenses of any public announcement and of any sale, transfer and assignment of the servicing rights and responsibilities hereunder and the amount of any unreimbursed Servicing Advances and Periodic Advances owed to the Indenture Trustee. After such deductions, the remainder of such sum shall be paid by the Indenture Trustee to the Servicer at the time of such sale, transfer and assignment to the Servicer's successor. (d) The Indenture Trustee and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. The Servicer agrees to cooperate with the Indenture Trustee and any successor Servicer in effecting the termination of the Servicer's servicing responsibilities and rights hereunder and shall promptly provide the Indenture Trustee or such successor Servicer, as applicable, at the Servicer's cost and expense, all documents and records reasonably requested by it to enable it to assume the Servicer's functions hereunder and shall promptly also transfer to the Indenture Trustee or such successor servicer, as applicable, all amounts that then have been or should have been deposited in the Collection Account by the Servicer or that are thereafter received with respect to the Mortgage Loans. Any collections received by the Servicer after such removal or resignation shall be endorsed by it to the Indenture Trustee and remitted directly to the Indenture Trustee or, at the direction of the Indenture Trustee, to the successor Servicer. Neither the Indenture Trustee nor any other successor Servicer shall be held liable by reason of any failure to make, or any delay in making, any distribution hereunder or any portion thereof caused by (i) the failure of the Servicer to deliver, or any delay in delivering, cash, documents or records to it, or (ii) restrictions imposed by any regulatory authority having jurisdiction over the Servicer hereunder. Notwithstanding anything to the contrary herein, no appointment of a successor Servicer under this Agreement shall be effective until the Indenture Trustee and the Note Insurer shall have consented thereto, and written notice of such proposed appointment shall have been provided by the Indenture Trustee to the Note Insurer and to each Noteholder. The Indenture Trustee shall not resign as Servicer until a successor Servicer reasonably acceptable to the Note Insurer has been appointed. The Note Insurer shall have the right to remove the Back-up Servicer as successor Servicer under this Section 7.02 without cause, and the Indenture Trustee shall appoint such other successor Servicer as directed by the Note Insurer. (e) Subject to Section 7.02(b), pending appointment of a successor Servicer hereunder, the Indenture Trustee shall act in such capacity as hereinabove provided. In connection with such appointment and assumption, the Indenture Trustee may make such arrangements for the compensation of such successor Servicer out of payments on Mortgage Loans as it and such successor shall agree; provided, however, that unless agreed to by the Note Insurer, no such compensation shall be in excess of that permitted the Servicer pursuant to Section 5.08, together with other Servicing Compensation. The Servicer, the Indenture Trustee and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (f) Upon the earliest to occur of (i) the appointment and qualification of any successor servicer (whether it shall be the Back-up Servicer or another entity) or (ii) notice by the Note Insurer, given in its sole discretion on any date on or after twelve months from the date of this Agreement, to the Back-up Servicer, with a copy to the Collateral Agent, the Indenture Trustee and the Servicer or (iii) termination of the Back-up Servicer for cause as provided in the succeeding sentence, the obligations of the Back-up Servicer under Section 5.23 shall terminate, without expense to the Trust, and the Back-up Servicer shall no longer be entitled to the Back-up Servicing Fee. On any Distribution Date prior to the date which is twelve months from the date of this Agreement, if the Back-up Servicer shall not have submitted an Officer's Certificate (as required by Section 5.23 hereof) evidencing the performance by it of its duties for the related Due Period, the Note Insurer may, by notice to the Back-up Servicer with a copy to the Indenture Trustee and the Servicer, terminate the obligations of the Back-up Servicer hereunder, effective 30 days from the date of such notice, unless the Back-up Servicer cures such failure within such 30-day period, or demonstrates to the Note Insurer's satisfaction that its failure to perform was due to circumstances beyond the control of the Back-up Servicer.

Back-up Servicer to Act; Appointment of Successor. (a) On and after the time date specified in the Servicer receives a notice of termination delivered pursuant to Section 7.01 or fails to receive a (which date shall be at least 20 days following the receipt of such notice by the Servicer, the Back-Up Servicer Extension Notice pursuant to Section 8.04, or and (if notice is sent by the Indenture Trustee receives Holders) the resignation of the Servicer evidenced by an Opinion of Counsel pursuant to Section 5.21, or the Servicer is removed as Servicer pursuant to this Article VII, in which event the Indenture Trustee shall promptly notify the Rating Agencies, except as otherwise provided in Section 7.01Trustee), the Back-up Servicer shall be the successor in all respects to the Servicer in its capacity as servicer under this Agreement and the transactions set forth or provided for herein and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof arising on or and after its succession. Notwithstanding the date of succession; providedforegoing, however, the parties hereto agree that the Back-up Servicer shall not be liable for any actions or the representations and warranties Servicer, in its capacity as successor Servicer, immediately will assume all of any Servicer prior to it and including, without limitation, the obligations of the Servicer set forth in Sections 2.06 and 4.02 hereofto make Advances; provided, furtherprovided however, that the Back-up Servicer shall be entitled to be indemnified by American Business Credit, Inc., in its capacity as the Servicer, in accordance with Section 5.19 and/or from the Distribution Accounts pursuant to Section 8.02 of the Indenture for any losses or liabilities resulting from the actions of any prior servicer, unless such losses or liabilities result from the gross negligence, willful misconduct or reckless disregard of the Back-up Servicer. The Back-up Servicer, as successor servicer, shall be obligated to pay Compensating Interest pursuant to Section 6.05 in any event and to make advances pursuant to Section 5.18 unless, and only to the extent the Back-up Servicer determines reasonably and in good faith that such advances would not be recoverable pursuant to Section 5.04, such determination to be evidenced by a certification of a Responsible Officer obligation of the Back-up Servicer delivered to make Advances is subject to the Note Insurer. (b) Notwithstanding the above, the Indenture Trustee may, if the Back-up Servicer shall be unwilling to so act, or shall, if the Back-up Servicer is unable to so act or if the Majority Noteholders with the consent of the Note Insurer or the Note Insurer so requests in writing to the Indenture Trustee, appoint, pursuant to such direction of the Majority Noteholders and Note Insurer or the Note Insurer, or if no such direction is provided to the Indenture Trustee, pursuant to the provisions standards set forth in Section 7.02(c), or petition a court of competent jurisdiction to appoint, any established mortgage loan servicing institution acceptable to the Note Insurer that has a net worth of not less than $15,000,000 as the successor to the Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Servicer hereunder3.25 hereof. Notwithstanding any other provisions of this Agreement, prior to the Back-up Servicer becoming the Servicer hereunder, the Depositor and the Servicer intend to revise this Agreement to remove certain provisions not applicable to a substitute servicer and to revise and add certain provisions to make this Agreement applicable to a substitute servicer. Without limitation, these provisions include Sections 2.08; 3.01; 4.02; 5.03(d); 5.04; 5.06; 5.08; 5.13; 5.18(b); 7.01; and 8.04; and, with respect to Section 9.05foregoing, the Back-up Servicer, prior to becoming the Servicer hereunder, will require reimbursement of any of the Collateral Agent's expenses it is required to pay pursuant to Section 9.05. Such reimbursement shall be paid by a person other than the Collateral Agent. In no event will the Collateral Agent or the Indenture Trustee assume, nor do any of the parties hereto anticipate that the Collateral Agent or the Indenture Trustee will assume, any added responsibilities as a result of the removal, revision or addition of any provisions, including, without limitation, to the Sections listed herein upon the Back-up Servicer becoming the Servicer hereunder. These revisions may be made only upon the agreement of the Servicer, the Depositor and the Indenture Trustee, with the prior written consent of the Note Insurer, in all cases in accordance with Section 10.03 hereof; provided, however, should it become necessary to appoint a successor servicer hereunder and no agreement is reached providing for the Back-up Servicer to become Servicer hereunder, then the services of the Back-up Servicer will be terminated and the Back-up Servicer will no longer be entitled to the Back-up Servicing Fee. (c) In the event the Back-up Servicer is the successor Servicer, it shall be entitled to the same Servicing Compensation (including the Servicing Fee as adjusted pursuant to the definition thereof) and other funds pursuant to Section 5.08 hereof as the Servicer if the Servicer had continued to act as servicer hereunder. In the event the Back-up Servicer is unable or unwilling to act its capacity as successor Servicer, or, if shall not be responsible for the Note Insurer so directslack of information and/or documents that it cannot obtain through reasonable efforts. As compensation for acting as successor Servicer, the Indenture Trustee Backup Servicer (or other successor Servicer) shall appoint such other entity as may be designated by receive the Note Insurer or, if the Note Insurer Servicing Fee. The appointment of a successor Servicer shall not affect any liability of the predecessor Servicer which may have designated another entity within 30 days following written notice arisen under this Agreement prior to its termination as Servicer to pay any deductible under an insurance policy pursuant to Section 3.11 or to indemnify the Trustee and pursuant to Section 3.06, nor shall any successor Servicer (including the Note Insurer by Backup Servicer or the Back-up Servicer that it will not serve Trustee as successor servicer, then, the Indenture Trustee shall solicit, by public announcement, bids from housing and home finance institutions, banks and mortgage servicing institutions meeting the qualifications set forth above. Such public announcement shall specify that the successor servicer shall Servicer) be entitled to the full amount liable for any acts or omissions of the aggregate Servicing Fees hereunder as servicing compensation, together with the other Servicing Compensation. Within thirty (30) days after predecessor Servicer or for any breach by such public announcement, the Indenture Trustee shall negotiate and effect the sale, transfer and assignment Servicer of the servicing rights and responsibilities hereunder to the qualified party submitting the highest qualifying bidany of its representations or warranties contained herein or in any related document or agreement. The Indenture Trustee shall deduct from any sum received by the Indenture Trustee from the successor to the Servicer in respect of such sale, transfer and assignment all costs and expenses of any public announcement and of any sale, transfer and assignment of the servicing rights and responsibilities hereunder and the amount of any unreimbursed Servicing Advances and Periodic Advances owed to the Indenture Trustee. After such deductions, the remainder of such sum shall be paid by the Indenture Trustee to the Servicer at the time of such sale, transfer and assignment to the Servicer's successor. (d) The Indenture Trustee and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. The All Servicing Transfer Costs shall be paid by the predecessor Servicer agrees upon presentation of reasonable documentation of such costs, and if such predecessor Servicer defaults in its obligation to cooperate with pay such costs, such costs shall be paid by the Indenture Trustee and any successor Servicer (in effecting which case the termination successor Servicer shall be entitled to reimbursement therefor from the assets of the Servicer's servicing responsibilities and rights hereunder and Issuing Entity) or if not paid, then by the Trustee from the Trust Fund. (b) Any successor Servicer shall promptly provide the Indenture Trustee or such successor Servicer, as applicable, at the Servicer's cost and expense, all documents and records reasonably requested by it to enable it to assume the Servicer's functions hereunder and shall promptly also transfer pay over to the Indenture Trustee or prior Servicer amounts representing recoveries of Advances funded by such successor servicer, as applicable, all prior Servicer from sources other than the amounts that then have been or should have been deposited held in the Collection Account for future distribution as contemplated by Section 3.25 hereof, such amounts to be paid over the Servicer or that are thereafter received with respect to the Mortgage Loans. Any collections received by oldest outstanding Advances first, in accordance with the Servicer after such removal or resignation shall be endorsed by it to the Indenture Trustee and remitted directly to the Indenture Trustee or, at the direction provisions of the Indenture Trustee, to the successor Servicer. Neither the Indenture Trustee nor any other successor Servicer shall be held liable by reason of any failure to make, or any delay in making, any distribution hereunder or any portion thereof caused by (iSection 3.07(a) the failure of the Servicer to deliver, or any delay in delivering, cash, documents or records to it, or (ii) restrictions imposed by any regulatory authority having jurisdiction over the Servicer hereunder. Notwithstanding anything to the contrary herein, no appointment of a successor Servicer under this Agreement shall be effective until the Indenture Trustee and the Note Insurer shall have consented thereto, and written notice of such proposed appointment shall have been provided by the Indenture Trustee to the Note Insurer and to each Noteholder. The Indenture Trustee shall not resign as Servicer until a successor Servicer reasonably acceptable to the Note Insurer has been appointed. The Note Insurer shall have the right to remove the Back-up Servicer as successor Servicer under this Section 7.02 without cause, and the Indenture Trustee shall appoint such other successor Servicer as directed by the Note Insurerhereof. (ec) Subject to Section 7.02(b)Any successor, pending appointment of a successor Servicer hereunder, the Indenture Trustee shall act in such capacity as hereinabove provided. In connection with such appointment and assumption, the Indenture Trustee may make such arrangements for the compensation of such successor Servicer out of payments on Mortgage Loans as it and such successor shall agree; provided, however, that unless agreed to by the Note Insurer, no such compensation shall be in excess of that permitted the Servicer pursuant to Section 5.08, together with other Servicing Compensation. The Servicer, the Indenture Trustee and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (f) Upon the earliest to occur of (i) the appointment and qualification of any successor servicer (whether it shall be the Back-up Servicer or another entity) or (ii) notice by the Note Insurer, given in its sole discretion on any date on or after twelve months from the date of this Agreement, to including the Back-up Servicer, with a copy to the Collateral AgentServicer as servicer shall during the term of its service as servicer continue to service and administer the Mortgage Loans for the benefit of Certificateholders, and maintain in force a policy or policies of insurance covering errors and omissions in the Indenture Trustee performance of its obligations as Servicer hereunder and a Fidelity Bond in respect of its officers, employees and agents to the same extent as the Servicer is so required pursuant to Section 3.11. (d) In connection with the termination or (iii) termination resignation of the Back-up Servicer for cause as provided in the succeeding sentence, the obligations of the Back-up Servicer under Section 5.23 shall terminate, without expense to the Trust, and the Back-up Servicer shall no longer be entitled to the Back-up Servicing Fee. On any Distribution Date prior to the date which is twelve months from the date of this Agreement, if the Back-up Servicer shall not have submitted an Officer's Certificate (as required by Section 5.23 hereof) evidencing the performance by it of its duties for the related Due Period, the Note Insurer may, by notice to the Back-up Servicer with a copy to the Indenture Trustee and the Servicer, terminate the obligations of the Back-up Servicer hereunder, effective 30 days either (i) the successor Servicer, shall represent and warrant that it is a member of MERS in good standing and shall agree to comply in all material respects with the rules and procedures of MERS in connection with the servicing of the Mortgage Loans that are registered with MERS, in which case the predecessor Servicer shall cooperate with the successor Servicer in causing MERS to revise its records to reflect the transfer of servicing to the successor Servicer as necessary under MERS’ rules and regulations, or (ii) the predecessor Servicer shall cooperate with the successor Servicer in causing MERS to execute and deliver an assignment of Mortgage in recordable form to transfer the Mortgages from MERS to the date Trustee and to execute and deliver such other notices, documents and other instruments as may be necessary or desirable to effect a transfer of such notice, unless Mortgage Loans or servicing of such Mortgage Loan on the Back-up Servicer cures such failure within such 30-day period, or demonstrates MERS System to the Note Insurer's satisfaction successor Servicer. The predecessor Servicer shall file or cause to be filed any such assignment in the appropriate recording offices. The predecessor Servicer shall bear any and all fees of MERS, costs of preparing any assignments of Mortgage, and fees and costs of filing any assignments of Mortgage that its failure may be required under this subsection (c). The successor Servicer shall cause assignment to perform was due be delivered to circumstances beyond the control Trustee promptly upon receipt of the Back-up Serviceroriginal with evidence of recording thereon or a copy certified by the public recording office in which such assignment was recorded.

Back-up Servicer to Act; Appointment of Successor. (a) On and after the time the Servicer receives a notice of termination pursuant to Section 7.01 6.01 or sends a notice pursuant to Section 5.04 or fails to receive a Servicer any Servicing Extension Notice pursuant to contemplated by Section 8.04, or the Indenture Trustee receives the resignation of the Servicer evidenced by an Opinion of Counsel pursuant to Section 5.21, or the Servicer is removed as Servicer pursuant to this Article VII, in which event the Indenture Trustee shall promptly notify the Rating Agencies, except as otherwise provided in Section 7.017.12, the Back-up Servicer (or another successor servicer selected by the Bond Insurer) on behalf of the Indenture Trustee on behalf of the Bondholders and the Bond Insurer shall be the successor in all respects to the Servicer in its capacity as servicer under this Servicing Agreement and the transactions set forth or provided for herein and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof arising hereof, including but not limited to the provisions of Article VIII. Nothing in this Servicing Agreement shall be construed to permit or require the Back-up Servicer or any other successor Servicer to (i) be responsible or accountable for any act or omission of the Servicer prior to the issuance of a notice of termination hereunder, (ii) require or obligate the Back-up Servicer, in its capacity as successor Servicer, to purchase, repurchase or substitute any Mortgage Loan, (iii) fund any losses on any Eligible Investment directed by any other Servicer, or after (iv) be responsible for the date representations and warranties of successionthe Servicer; provided, however, that the Back-up Servicer, as successor Servicer, or any other successor Servicer shall not be liable for required to make any actions or required Advances to the representations and warranties of any Servicer prior to it and including, without limitation, the obligations of extent that the Servicer set forth in Sections 2.06 and 4.02 hereof; providedfailed to make such Advances. As compensation therefor, further, that the Back-up Servicer or any other successor Servicer shall be entitled to be indemnified by American Business Credit, Inc., in its capacity as the Servicer, in accordance with Section 5.19 and/or from the Distribution Accounts pursuant to Section 8.02 of the Indenture for any losses or liabilities resulting from the actions of any prior servicer, unless such losses or liabilities result from the gross negligence, willful misconduct or reckless disregard of the Back-up ServicerServicing Fee. The Back-up Servicer, as successor servicer, shall be obligated to pay Compensating Interest pursuant to Section 6.05 in any event and to make advances pursuant to Section 5.18 unless, and only to the extent the Back-up Servicer determines reasonably and in good faith that such advances would not be recoverable pursuant to Section 5.04, such determination to be evidenced by a certification of a Responsible Officer of the Back-up Servicer delivered to the Note Insurer.34 (b) Notwithstanding the above, the Indenture Trustee may, if the Back-up Servicer shall be unwilling (or another successor servicer selected by the Bond Insurer) is legally unable to so act, or shall, if the Back-up Servicer is unable to so act or if the Majority Noteholders with the consent of the Note Insurer or the Note Bond Insurer so requests in writing to the Indenture Trustee, appoint, pursuant to such direction of the Majority Noteholders and Note Insurer or the Note Insurer, or if no such direction is provided to the Indenture Trustee, pursuant to the provisions set forth in Section 7.02(c), or petition a court of competent jurisdiction to appoint, any established mortgage loan servicing institution acceptable to the Note Insurer that has a net worth of not less than $15,000,000 as the successor to the Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Servicer hereunder. Notwithstanding any other provisions of this Agreement, prior to the Back-up Servicer becoming the Servicer hereunderelects, the Depositor and the Servicer intend to revise this Agreement to remove certain provisions not applicable to a substitute servicer and to revise and add certain provisions to make this Agreement applicable to a substitute servicer. Without limitation, these provisions include Sections 2.08; 3.01; 4.02; 5.03(d); 5.04; 5.06; 5.08; 5.13; 5.18(b); 7.01; and 8.04; and, with respect to Section 9.05, the Back-up Servicer, prior to becoming the Servicer hereunder, will require reimbursement of any of the Collateral Agent's expenses it is required to pay pursuant to Section 9.05. Such reimbursement Bond Administrator shall be paid by a person other than the Collateral Agent. In no event will the Collateral Agent or the Indenture Trustee assume, nor do any of the parties hereto anticipate that the Collateral Agent or the Indenture Trustee will assume, any added responsibilities as a result of the removal, revision or addition of any provisions, including, without limitation, to the Sections listed herein upon the Back-up Servicer becoming the Servicer hereunder. These revisions may be made only upon the agreement of the Servicer, the Depositor and the Indenture Trustee, with the prior written consent of the Note Insurer, in all cases in accordance with Section 10.03 hereof; provided, however, should it become necessary to appoint a successor servicer hereunder and no agreement is reached providing for the Back-up Servicer to become Servicer hereunder, then the services of the Back-up Servicer will be terminated and the Back-up Servicer will no longer be entitled to the Back-up Servicing Fee. (c) In the event the Back-up Servicer is the successor Servicer, it shall be entitled subject to the same Servicing Compensation (including the Servicing Fee as adjusted pursuant rights accorded to the definition thereof) and other funds pursuant to Section 5.08 hereof as the Servicer if the Servicer had continued to act as servicer hereunder. In the event the Back-up Servicer is unable or unwilling to act as successor Servicer, or, if the Note Insurer so directs, the Indenture Trustee shall appoint such other entity as may be designated by the Note Insurer or, if the Note Insurer shall not have designated another entity within 30 days following written notice to the Trustee and the Note Insurer by the Back-up Servicer that it will not serve as successor servicer, then, the Indenture Trustee shall solicit, by public announcement, bids from housing and home finance institutions, banks and mortgage servicing institutions meeting the qualifications set forth above. Such public announcement shall specify that the successor servicer shall be entitled to the full amount of the aggregate Servicing Fees hereunder as servicing compensation, together with the other Servicing Compensation. Within thirty (30) days after any such public announcement, the Indenture Trustee shall negotiate and effect the sale, transfer and assignment of the servicing rights and responsibilities hereunder to the qualified party submitting the highest qualifying bid. The Indenture Trustee shall deduct from any sum received by the Indenture Trustee from the successor to the Servicer in respect of such sale, transfer and assignment all costs and expenses of any public announcement and of any sale, transfer and assignment of the servicing rights and responsibilities hereunder and the amount of any unreimbursed Servicing Advances and Periodic Advances owed to the Indenture Trustee. After such deductions, the remainder of such sum shall be paid by the Indenture Trustee to the Servicer at the time of such sale, transfer and assignment to the Servicer's successor. (d) The Indenture Trustee and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. The Servicer agrees to cooperate with the Indenture Trustee and any successor Servicer in effecting the termination of the Servicer's servicing responsibilities and rights hereunder and shall promptly provide the Indenture Trustee or such successor Servicer, as applicable, at the Servicer's cost and expense, all documents and records reasonably requested by it to enable it to assume the Servicer's functions hereunder and shall promptly also transfer to the Indenture Trustee or such successor servicer, as applicable, all amounts that then have been or should have been deposited in the Collection Account by the Servicer or that are thereafter received with respect to the Mortgage Loans. Any collections received by the Servicer after such removal or resignation shall be endorsed by it to the Indenture Trustee and remitted directly to the Indenture Trustee or, at the direction of the Indenture Trustee, to the successor Servicer. Neither the Indenture Trustee nor any other successor Servicer shall be held liable by reason of any failure to make, or any delay in making, any distribution hereunder or any portion thereof caused by (i) the failure of the Servicer to deliver, or any delay in delivering, cash, documents or records to it, or (ii) restrictions imposed by any regulatory authority having jurisdiction over the Servicer hereunder. Notwithstanding anything to the contrary herein, no appointment of a successor Servicer under this Agreement shall be effective until the Indenture Trustee and the Note Insurer shall have consented thereto, and written notice of such proposed appointment shall have been provided by the Indenture Trustee to the Note Insurer and to each Noteholder. The Indenture Trustee shall not resign as Servicer until a successor Servicer reasonably acceptable to the Note Insurer has been appointed. The Note Insurer shall have the right to remove the Back-up Servicer as successor Servicer under this Section 7.02 without cause, and the Indenture Trustee shall appoint such other successor Servicer as directed by the Note Insurer. (e) Subject to Section 7.02(b), pending appointment of a successor Servicer hereunder, the Indenture Trustee shall act in such capacity as hereinabove provided. In connection with such appointment and assumption, the Indenture Trustee may make such arrangements for the compensation of such successor Servicer out of payments on Mortgage Loans as it and such successor shall agree; provided, however, that unless agreed to by the Note Insurer, no such compensation shall be in excess of that permitted the Servicer pursuant to Section 5.08, together with other Servicing Compensation. The Servicer, the Indenture Trustee and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (f) Upon the earliest to occur of (i) the appointment and qualification of any successor servicer (whether it shall be the Back-up Servicer or another entity) or (ii) notice by the Note Insurer, given in its sole discretion on any date on or after twelve months from the date of this Agreement, to the Back-up Servicer, with a copy to the Collateral Agent, the Indenture Trustee and the Servicer or (iii) termination of the Back-up Servicer for cause as provided in the succeeding sentence, the obligations of the Back-up Servicer under Section 5.23 shall terminate, without expense to the Trust, 6.01 and the Back-up Servicer shall no longer be entitled to the Back-up Servicing Fee. On any Distribution Date prior to the date which is twelve months from the date of this Agreement, if the Back-up Servicer shall not have submitted an Officer's Certificate (as required by Section 5.23 hereof) evidencing the performance by it of its duties for the related Due Period, the Note Insurer may, by notice to the Back-up Servicer with a copy to the Indenture Trustee and the Servicer, terminate the obligations of the Back-up Servicer hereunder, effective 30 days from the date of such notice, unless the Back-up Servicer cures such failure within such 30-day period, or demonstrates to the Note Insurer's satisfaction that its failure to perform was due to circumstances beyond the control of the Back-up Servicer6.

Back-up Servicer to Act; Appointment of Successor. (a) On and after the time the Servicer receives a notice of termination pursuant to Section 7.01 or fails to receive a Servicer Extension Notice pursuant to Section 8.04, or the Indenture Trustee receives the resignation of the Servicer evidenced by an Opinion of Counsel pursuant to Section 5.21, or the Servicer is removed as Servicer pursuant to this Article VII, in which event the Indenture Trustee shall promptly notify the Rating Agencies, except as otherwise provided in Section 7.01, the Back-up Servicer shall be the successor in all respects to the Servicer in its capacity as servicer under this Agreement and the transactions set forth or provided for herein and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof arising on or after the date of succession; provided, however, that the Back-up Servicer shall not be liable for any actions or the representations and warranties of any Servicer prior to it and including, without limitation, the obligations of the Servicer set forth in Sections 2.06 and 4.02 hereof; provided, further, that the Back-up Servicer shall be entitled to be indemnified by American Business Credit, Inc., in its capacity as the Servicer, in accordance with Section 5.19 and/or from the Distribution Payment Accounts pursuant to Section 8.02 of the Indenture for any losses or liabilities resulting from the actions of any prior servicer, unless such losses or liabilities result from the gross negligence, willful misconduct or reckless disregard of the Back-up Servicer. The Back-up Servicer, as successor servicerServicer, shall be obligated to pay Compensating Interest pursuant to Section 6.05 in any event and to make advances pursuant to Section 5.18 unless, and only to the extent the Back-up Servicer determines reasonably and in good faith that such advances would not be recoverable pursuant to Section 5.04, such determination to be evidenced by a certification of a Responsible Officer of the Back-up Servicer delivered to the Note Insurer. (b) Notwithstanding the above, the Indenture Trustee may, if the Back-up Servicer shall be unwilling to so act, or shall, if the Back-up Servicer is unable to so act or if the Majority Noteholders with the consent of the Note Insurer or the Note Insurer so requests in writing to the Indenture Trustee, appoint, pursuant to such direction of the Majority Noteholders and Note Insurer or the Note Insurer, or if no such direction is provided to the Indenture Trustee, pursuant to the provisions set forth in Section 7.02(c), or petition a court of competent jurisdiction to appoint, any established mortgage loan servicing institution acceptable to the Note Insurer that has a net worth of not less than $15,000,000 as the successor to the Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Servicer hereunder. Notwithstanding any other provisions of this Agreement, prior to the Back-up Servicer becoming the Servicer hereunder, the Depositor and the Servicer intend to revise this Agreement to remove certain provisions not applicable to a substitute servicer and to revise and add certain provisions to make this Agreement applicable to a substitute servicer. Without limitation, these provisions include Sections 2.08; 3.01; 4.02; 5.03(d); 5.04; 5.06; 5.08; 5.13; 5.18(b); 7.01; and 8.04; and, with respect to Section 9.05, the Back-up Servicer, prior to becoming the Servicer Service hereunder, will require reimbursement of for any of the Collateral Agent's expenses it is required to pay pursuant to Section 9.05. Such reimbursement shall be paid by a person Person other than the Collateral Agent. In no event will the Collateral Agent or the Indenture Trustee assume, nor do any of the parties hereto anticipate that the Collateral Agent or the Indenture Trustee will assume, any added responsibilities as a result of the removal, revision or addition of any provisions, including, without limitation, to the Sections listed herein upon the Back-up Servicer becoming the Servicer hereunder. These revisions may be made only upon the agreement of the Servicer, the Depositor and the Indenture Trustee, with the prior written consent of the Note Insurer, in all cases in accordance with Section 10.03 hereof; provided, however, should it become necessary to appoint a successor servicer hereunder and no agreement is reached providing for the Back-up Servicer to become Servicer hereunder, then the services of the Back-up Servicer will be terminated and the Back-up Servicer will no longer be entitled to the Back-up Servicing Fee. (c) In the event the Back-up Servicer is the successor Servicer, it shall be entitled to the same Servicing Compensation (including the Servicing Fee as adjusted pursuant to the definition thereof) and other funds pursuant to Section 5.08 hereof as the Servicer if the Servicer had continued to act as servicer hereunder. In the event the Back-up Servicer is unable or unwilling to act as successor Servicer, or, if the Note Insurer so directs, the Indenture Trustee shall appoint such other entity as may be designated by the Note Insurer or, if the Note Insurer shall not have designated another entity within 30 days following written notice to the Trustee and the Note Insurer by the Back-up Servicer that it will not serve as successor servicer, then, the Indenture Trustee shall solicit, by public announcement, bids from housing and home finance institutions, banks and mortgage servicing institutions meeting the qualifications set forth above. Such public announcement shall specify that the successor servicer shall be entitled to the full amount of the aggregate Servicing Fees hereunder as servicing compensation, together with the other Servicing Compensation. Within thirty (30) days after any such public announcement, the Indenture Trustee shall negotiate and effect the sale, transfer and assignment of the servicing rights and responsibilities hereunder to the qualified party submitting the highest qualifying bid. The Indenture Trustee shall deduct from any sum received by the Indenture Trustee from the successor to the Servicer in respect of such sale, transfer and assignment all costs and expenses of any public announcement and of any sale, transfer and assignment of the servicing rights and responsibilities hereunder and the amount of any unreimbursed Servicing Advances and Periodic Advances owed to the Indenture Trustee. After such deductions, the remainder of such sum shall be paid by the Indenture Trustee to the Servicer at the time of such sale, transfer and assignment to the Servicer's successor. (d) The Indenture Trustee and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. The Servicer agrees to cooperate with the Indenture Trustee and any successor Servicer in effecting the termination of the Servicer's servicing responsibilities and rights hereunder and shall promptly provide the Indenture Trustee or such successor Servicer, as applicable, at the Servicer's cost and expense, all documents and records reasonably requested by it to enable it to assume the Servicer's functions hereunder and shall promptly also transfer to the Indenture Trustee or such successor servicer, as applicable, all amounts that then have been or should have been deposited in the Collection Account by the Servicer or that are thereafter received with respect to the Mortgage Loans. Any collections received by the Servicer after such removal or resignation shall be endorsed by it to the Indenture Trustee and remitted directly to the Indenture Trustee or, at the direction of the Indenture Trustee, to the successor Servicer. Neither the Indenture Trustee nor any other successor Servicer shall be held liable by reason of any failure to make, or any delay in making, any distribution hereunder or any portion thereof caused by (i) the failure of the Servicer to deliver, or any delay in delivering, cash, documents or records to it, or (ii) restrictions imposed by any regulatory authority having jurisdiction over the Servicer hereunder. Notwithstanding anything to the contrary herein, no appointment of a successor Servicer under this Agreement shall be effective until the Indenture Trustee and the Note Insurer shall have consented thereto, and written notice of such proposed appointment shall have been provided by the Indenture Trustee to the Note Insurer and to each Noteholder. The Indenture Trustee shall not resign as Servicer until a successor Servicer reasonably acceptable to the Note Insurer has been appointed. The Note Insurer shall have the right to remove the Back-up Servicer Indenture Trustee as successor Servicer under this Section 7.02 without cause, and the Indenture Trustee Back-up Servicer shall appoint such other successor Servicer as directed by the Note Insurer. (e) Subject to Section 7.02(b), pending appointment of a successor Servicer hereunder, the Indenture Trustee shall act in such capacity as hereinabove provided. In connection with such appointment and assumption, the Indenture Trustee may make such arrangements for the compensation of such successor Servicer out of payments on Mortgage Loans as it and such successor shall agree; provided, however, that unless agreed to by the Note Insurer, Insurer no such compensation shall be in excess of that permitted the Servicer pursuant to Section 5.08, together with other Servicing Compensation. The Servicer, the Indenture Trustee and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (f) Upon the earliest to occur of (i) the appointment and qualification of any successor servicer (whether it shall be the Back-up Servicer or another entity) or ), (ii) notice by the Note Insurer, given in its sole discretion on any date on or after twelve months from the date of this Agreement, to the Back-up Servicer, with a copy to the Collateral Agent, the Indenture Trustee and the Servicer Servicer, or (iii) termination of the Back-up Servicer for cause as provided in the succeeding sentence, the obligations of the Back-up Servicer under Section 5.23 shall terminate, without expense to the Trust, and the Back-up Servicer shall no longer be entitled to the Back-up Servicing Fee. On any Distribution Date prior to the date which is twelve months from the date of this Agreement, if the Back-up Servicer shall not have submitted an Officer's Certificate (as required by Section 5.23 hereof) evidencing the performance by it of its duties for the related Due Period, the Note Insurer may, by notice to the Back-up Servicer with a copy to the Indenture Trustee and the Servicer, terminate the obligations of the Back-up Servicer hereunder, effective 30 days from the date of such notice, unless the Back-up Servicer cures such failure within such 30-30 day period, or demonstrates to the Note Insurer's satisfaction that its failure to perform was due to circumstances beyond the control of the Back-up ServicerService.

Back-up Servicer to Act; Appointment of Successor. (a) On and or after the time the t Servicer receives a notice of termination pursuant to Section 7.01 or fails to receive a Servicer Extension Notice pursuant to Section 8.047.01, or the Indenture Trustee receives the resignation of the Servicer evidenced by an Opinion of Counsel pursuant to Section 5.21, or the Servicer is removed as Servicer servicer pursuant to this Article VII, in which event the Indenture Trustee shall promptly notify the Rating Agencies, except as otherwise provided in Section 7.01, subject to Section 7.02(b), the Back-up Servicer shall be the successor in all respects to the Servicer in its capacity as servicer under this Agreement and the transactions set forth or provided for herein and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof arising on or after the date of succession; provided, however, that the Back-up Servicer shall not be liable for any actions or the representations and warranties of any Servicer servicer prior to it and including, without limitation, the obligations of the Servicer set forth in Sections 2.06 and 4.02 hereof3.03; provided, further, that the Back-up Servicer shall be entitled to be indemnified by American Express Business Credit, Inc., in its capacity as the Servicer, in accordance with Section 5.19 and/or from the Distribution Accounts Certificate Account pursuant to Section 8.02 of the Indenture 6.05(a)(iv) for any losses or liabilities resulting from the actions of any prior servicer, unless such losses or liabilities result from the gross negligence, willful misconduct or reckless disregard of the Back-up Servicer. The Back-up Servicer, as successor servicer, shall be obligated to pay Compensating Interest pursuant to Section 6.05 6.09 in any event and to make advances pursuant to Section 5.18 unless, and only to the extent the Back-up Servicer determines reasonably and in good faith that such advances would not be recoverable pursuant to Section 5.04, such determination to be evidenced by a certification of a Responsible Officer of the Back-up Servicer delivered to the Note Certificate Insurer. (b) Notwithstanding the above, the Indenture Trustee may, if the Back-up Servicer shall be unwilling to so act, or shall, if the Back-up Servicer is unable to so act or if the Majority Noteholders Certificateholders with the consent of the Note Certificate Insurer or the Note Certificate Insurer so requests in writing to the Indenture Trustee, appoint, pursuant to such direction of the Majority Noteholders and Note Insurer or the Note Insurer, or if no such direction is provided to the Indenture Trustee, pursuant to the provisions set forth in Section 7.02(c)paragraph (c) below, or petition a court of competent jurisdiction to appoint, any established mortgage loan servicing institution acceptable to the Note Certificate Insurer that has a net worth of not less than $15,000,000 as the successor to the Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Servicer hereunder. Notwithstanding any other provisions of this Agreement, prior to the Back-up Servicer becoming the Servicer hereunder, the Depositor and the Servicer intend to revise this Agreement to remove certain provisions not applicable to a substitute servicer and to revise and add certain provisions to make this Agreement applicable to a substitute servicer. Without limitation, these provisions include Sections 2.082.11; 3.01; 4.023.03; 5.03(d); 5.04; 5.06; 5.08; 5.13; 5.18(b); 7.01; and 8.04; and, with respect to Section 9.05, the Back-up Servicer, prior to becoming the Servicer hereunder, will require reimbursement of for any of the Collateral AgentTrustee's expenses it is required to pay pursuant to Section 9.05. Such reimbursement shall be paid by a person Person other than the Collateral AgentTrustee. In no event will the Collateral Agent or the Indenture Trustee assume, nor do any of the parties hereto anticipate that the Collateral Agent or the Indenture Trustee will assume, any added responsibilities as a result of the removal, revision or addition of any provisions, including, without limitation, to the Sections listed herein upon the Back-up Servicer becoming the Servicer hereunder. These revisions may be made only upon the agreement of the Servicer, the Depositor and the Indenture Trustee, with the prior written consent of the Note Certificate Insurer, in all cases in accordance with Section 10.03 hereof; provided, however, should it become necessary to appoint a successor servicer hereunder and no agreement is reached providing for the Back-up Servicer to become Servicer hereunder, then the services of the Back-up Servicer will be terminated and the Back-up Servicer will no longer be entitled to the Back-up Servicing Fee. (c) In the event the Back-up Servicer is the successor Servicerservicer, it shall be entitled to the same Servicing Compensation (including the Servicing Fee as adjusted pursuant to the definition thereof) and other funds pursuant to Section 5.08 hereof as the Servicer if the Servicer had continued to act as servicer hereunder. In the event the Back-up Servicer is unable or unwilling to act as successor Servicerservicer, or, if the Note Certificate Insurer so directs, the Indenture Trustee shall appoint such other entity as may be designated by the Note Certificate Insurer or, if the Note Certificate Insurer shall not have designated another entity within 30 days following written notice to the Trustee and the Note Certificate Insurer by the Back-up Servicer that it will not serve as successor servicer, then, then the Indenture Trustee shall solicit, by public announcement, bids from housing and home finance institutions, banks and mortgage servicing institutions meeting the qualifications set forth above. Such public announcement shall specify that the successor servicer shall be entitled to the full amount of the aggregate Servicing Fees hereunder as servicing compensation, together with the other Servicing Compensation. Within thirty (30) days after any such public announcement, the Indenture Trustee shall negotiate and effect the sale, transfer and assignment of the servicing rights and responsibilities hereunder to the qualified party submitting the highest qualifying bid. The Indenture Trustee shall deduct from any sum received by the Indenture Trustee from the successor to the Servicer in respect of such sale, transfer and assignment all costs and expenses of any public announcement and of any sale, transfer and assignment of the servicing rights and responsibilities hereunder and the amount of any unreimbursed Servicing Advances and Periodic Advances owed to the Indenture Trustee. After such deductions, the remainder of such sum shall be paid by the Indenture Trustee to the Servicer at the time of such sale, transfer and assignment to the Servicer's successor. (d) The Indenture Trustee and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. The Servicer agrees to cooperate with the Indenture Trustee and any successor Servicer servicer in effecting the termination of the Servicer's servicing responsibilities and rights hereunder and shall promptly provide the Indenture Trustee or such successor Servicerservicer, as applicable, at the Servicer's cost and expense, all documents and records reasonably requested by it to enable it to assume the Servicer's functions hereunder and shall promptly also transfer to the Indenture Trustee or such successor servicer, as applicable, all amounts that then have been or should have been deposited in the Collection Account by the Servicer or that are thereafter received with respect to the Mortgage Loans. Any collections received by the Servicer after such removal or resignation shall be endorsed by it to the Indenture Trustee and remitted directly to the Indenture Trustee or, at the direction of the Indenture Trustee, to the successor Servicerservicer. Neither the Indenture Trustee nor any other successor Servicer servicer shall be held liable by reason of any failure to make, or any delay in making, any distribution hereunder or any portion thereof caused by (i) the failure of the Servicer to deliver, or any delay in delivering, cash, documents or records to it, or (ii) restrictions imposed by any regulatory authority having jurisdiction over the Servicer hereunder. Notwithstanding anything to the contrary herein, no appointment of a successor to the Servicer under this Agreement shall be effective until the Indenture Trustee and the Note Certificate Insurer shall have consented thereto, and written notice of such proposed appointment shall have been provided by the Indenture Trustee to the Note Certificate Insurer and to each NoteholderCertificateholder. The Indenture Trustee Back-up Servicer shall not resign as Servicer servicer until a successor Servicer servicer reasonably acceptable to the Note Certificate Insurer has been appointed. The Note Certificate Insurer shall have the right to remove the Back-up Servicer as successor Servicer under this Section 7.02 without cause, and the Indenture Trustee shall appoint such other successor Servicer as directed by the Note Certificate Insurer. (e) Subject to Section 7.02(b), pending appointment of a successor to the Servicer hereunder, the Indenture Trustee Back-up Servicer shall act in such capacity as hereinabove provided. In connection with such appointment and assumption, the Indenture Trustee may make such arrangements for the compensation of such successor Servicer out of payments on Mortgage Loans as it and such successor shall agree; provided, however, that that, unless agreed to by the Note Certificate Insurer, no such compensation shall be in excess of that permitted the Servicer pursuant to Section 5.08, together with other Servicing Compensation. The Servicer, the Indenture Back-up Servicer, the Trustee and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. (f) Upon the earliest to occur of (i) the appointment and qualification of any successor servicer (whether it shall be the Back-up Servicer or another entity) or ), (ii) notice by the Note Certificate Insurer, given in its sole discretion on any date on or after twelve months from the date of this Agreement, to the Back-up Servicer, with a copy to the Collateral Agent, the Indenture Trustee and the Servicer, the obligations of the Back-up Servicer or (iii) termination of the Back-up Servicer for cause as provided in the succeeding sentence, the obligations of the Back-up Servicer under Section 5.23 shall terminate, without expense to the Trust, and the Back-up Servicer shall no longer be entitled to the Back-up Servicing Fee. On any Distribution Date prior to the date which is twelve months from the date of this Agreement, if the Back-up Servicer shall not have submitted an Officer's Certificate (as required by Section 5.23 hereof) evidencing the performance by it of its duties for the related Due Period, the Note Certificate Insurer may, by notice to the Back-up Servicer with a copy to the Indenture Trustee and the Servicer, terminate the obligations of the Back-up Servicer hereunder, effective 30 days from the date of such notice, unless the Back-up Servicer cures such failure within such 30-30 day period, or demonstrates to the Note Certificate Insurer's satisfaction that its failure to perform was due to circumstances beyond the control of the Back-up Servicer.