Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing: (a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit on or before the date occurring five Business Days after the date such payment, transfer, deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; or (b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; or (c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; or (d) the Servicer shall (a) become insolvent, (b) fail to pay its debts generally as they become due, (c) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% of the Aggregate Investor Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (JCP Receivables Inc)
Servicer Defaults. If Upon the occurrence of a Servicer Default with respect to any one of the following events (a "Servicer Default") shall occur Series, and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit on or before the date occurring five Business Days after the date such payment, transfer, deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; or
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; or
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; or
(d) the Servicer shall (a) become insolvent, (b) fail to pay its debts generally as they become due, (c) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; then, so long as such Servicer Default shall not have been remediedremedied or waived, either the Trustee, or at the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% direction of the Aggregate Investor AmountMajority Certificateholders of such Series, by notice then given in writing to the Applicable Master Servicer (and to the Trustee if given by the Investor Certificateholders) (such notice being a "Termination Notice"), may shall terminate all but not less than all of the rights and obligations of the such Applicable Master Servicer as Servicer servicer under this Agreement and in and any related Supplement with respect to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder each such Series with respect to which such notice was so given. The Trustee shall not be deemed to have knowledge of the Exchangeable Certificate under this Agreement)a Servicer Default with respect to any Series until a Responsible Officer has received written notice thereof. After receipt by the any Applicable Master Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.210.02, all authority and power of the such Master Servicer under this Agreement and any Supplements for any Series for which such Person acts as Master Servicer shall pass to and be vested in such Successor Servicer (a Successor Servicer"Service Transfer"); and, without limitation, the Trustee is hereby authorized authorized, empowered and empowered instructed (upon the failure of the such Master Servicer to cooperate) to execute and deliver, on behalf of the such Master Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the such Master Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Each Master Servicer hereby agrees to cooperate cooperate, at its expense (other than with respect to out-of-pocket costs and expenses payable to third parties (other than Affiliated Entities or their Affiliates or employees), which amounts shall be reimbursed by the Successor Servicer), with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the such Master Servicer to conduct servicing hereunderhereunder and under the applicable Supplements, including, without limitation, the transfer to such Successor Servicer of all authority of the such Master Servicer to service the Receivables as provided for under this AgreementAgreement and under the applicable Supplements, including, without limitation, including all authority over all Collections which shall on the date of transfer such Service Transfer be held by the such Master Servicer for depositdeposit to any Lock-Box Account, the Master Collection Account, any Series Collection Account, any Series Payment Account, the Trustee's Account or the Seller's Account, for payment to any Claimant in respect of any Split Payment, or which have been deposited by the Servicersuch Master Servicer to any Lock-Box Account, in the Collection Account, the Finance Charge Account orany Series Collection Account, the Principal any Series Payment Account, or any other account, or which shall thereafter be received with respect to the Receivables, and in (ii) assisting the successor servicer. Such Master Servicer shall, at its expense (other than with respect to out-of-pocket costs and expenses payable to third parties (other than Affiliated Entities or their Affiliates or employees), which amounts shall be reimbursed by the Successor Servicer Servicer), as soon as practicable, and in enforcing all rights any event within three Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and disks, which evidence the affected Series Receivables and the other Series Trust Assets, and which are necessary or desirable to Insurance Proceeds. The Servicer collect the affected Series Receivables, and shall promptly transfer its electronic records relating to make the Receivables same available to the Successor Servicer or the Trustee or its designee at a place selected by the Successor Servicer or the Trustee and in such electronic form as the Successor Servicer or the Trustee may reasonably request request, and shall promptly transfer (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Receivables and Split Payments in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all other recordssuch cash, correspondence checks and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose instruments to the Successor Servicer information of any kind which or the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect Trustee or its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicerdesignee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wentworth J G & Co Inc)
Servicer Defaults. If any one of the following events (a "“Servicer Default"”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give notice or instructions or notice to the Indenture Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit required withdrawal or payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer, deposit or drawing or such instruction or notice Servicer is required to be made or given, as the case may be, do so under the terms of this Agreement Agreement, the Indenture or any Indenture Supplement; or, or within the applicable grace period, which will not exceed 35 Business Days;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect an Adverse Effect on the CertificateholdersNoteholders of any Series, Class or Tranche and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer Servicer, the Owner Trustee, the Indenture Trustee and the Trustee applicable Collateral Agent by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Section 8.7; orSections 7.02, 7.05 and 7.06;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect an Adverse Effect on the rights of the Certificateholders Noteholders of any Series, Class or Tranche and which Adverse Effect continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer Servicer, the Owner Trustee, the Indenture Trustee and the Trustee applicable Collateral Agent by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or if certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicerrepresentation, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; orwarranty or certification relates);
(d) the Servicer shall (a) become insolventconsent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, (b) fail readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable bankruptcy, consent toinsolvency or reorganization statute, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or its obligations; or
(d) become a party to (or be made the subject ofe) any proceeding provided for by other Servicer Default described in any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filingIndenture Supplement; then, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate Investor Amountaggregate unpaid principal amount of all affected Notes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "“Termination Notice"”), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer under this Agreement Agreement; provided, however, if within 60 days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with subsection 10.02(a) to act as a Successor Servicer and in and receives an Officer’s Certificate of the Servicer to the Receivables and effect that the proceeds thereof (other than its rights and interestServicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, if any, as Holder the Indenture Trustee shall assume the role of the Exchangeable Certificate under this Agreement)Successor Servicer. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 10.210.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a Successor Servicer; “Service Transfer”) and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables Collateral provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, Account for the Finance Charge Account or, the Principal Accountapplicable Asset Pool, or which shall thereafter be received with respect to the ReceivablesCollateral, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsProceeds and Interchange (if any) applicable to the Trust. The Servicer shall promptly within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables Collateral in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer shallfrom using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, on the date Owner Trustee, the applicable Collateral Agent and each Transferor with an Officer’s Certificate giving prompt notice of any servicing transfersuch failure or delay by it, transfer all together with a description of its rights and efforts so to perform its obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (First Usa Credit Card Master Trust)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) : any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 Article IV or to deliver any reports to the Trustee and the Certificateholders pursuant to Article V or to instruct the Trustee to make a drawing any required drawing, withdrawal, or payment under any Letter of Credit on or before the date occurring five Enhancement, in each case, within one Business Days Day after the date that such payment, transfer, deposit deposit, withdrawal or drawing drawing, such report or such instruction or notice is required to be made made, delivered or given, as the case may be, under the terms of this Agreement or any Supplement; or
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amountsixty (60) days; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; or
(c) any representation, warranty or certification made by the Servicer in this Agreement, Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect in any material respect when made, which has a material adverse effect on the rights of the Certificateholders made or deemed made or delivered and which continues to be incorrect for a period of sixty (60) days; the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any material respect insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, days; or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; or
(d) the Servicer shall (a) become insolvent, (b) fail admit in writing its inability to pay its debts generally as they become due, commence or have commenced against it (cunless dismissed within thirty days) voluntarily seekas debtor a proceeding under any applicable insolvency or reorganization statute, consent to, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of its obligations; the Servicer assigns any Debtor Relief Lawof its duties under this Agreement, except as permitted by the terms of this Agreement; or (d) become the Servicer fails to maintain a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filingtangible net worth of at least $250,000; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Requisite Certificateholders (determined without giving effect to Investor Certificates evidencing Undivided Interests aggregating not less than 51% for such Series held by the Transferor or any of the Aggregate Investor Amountits Affiliates) for all Series, by notice then given in writing to the Servicer Servicer, (and to the Trustee if given by the Investor Certificateholders) (a "Servicer Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Servicer Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsrights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal or any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsProceeds applicable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, obligations under the Letter of Credit any Enhancement with respect to any Series to the Successor Servicer.
Appears in 1 contract
Servicer Defaults. If any one Upon the occurrence of the following events (a "Servicer Default") shall occur , and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit on or before the date occurring five Business Days after the date such payment, transfer, deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; or
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; or
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; or
(d) the Servicer shall (a) become insolvent, (b) fail to pay its debts generally as they become due, (c) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; then, so long as such Servicer Default shall not have been remediedremedied or waived, either the Trustee, or at the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% direction of the Aggregate Investor AmountControl Party, by notice then given in writing to the Master Servicer (and to the Trustee if given by the Investor Certificateholders) (such notice being a "“Termination Notice"”), may shall terminate all of the rights and obligations of the Master Servicer as Servicer servicer under this Agreement and in and the Supplement with respect to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder which such notice was so given. The Trustee shall not be deemed to have knowledge of the Exchangeable Certificate under this Agreement)a Servicer Default with respect to any Series until a Responsible Officer has received written notice thereof. After receipt by the Master Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.210.02, all authority and power of the Master Servicer under this Agreement and the Supplement shall pass to and be vested in such Successor Servicer (a Successor Servicer“Service Transfer”); and, without limitation, the Trustee is hereby authorized authorized, empowered and empowered instructed (upon the failure of the Master Servicer to cooperate) ), at the direction of the Control Party, to execute and deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Master Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Master Servicer hereby agrees to cooperate cooperate, at its expense, with the Trustee Trustee, such Successor Servicer and any designated subcontractor of such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Master Servicer to conduct servicing hereunderhereunder and under the Supplement, including, without limitation, the transfer to such Successor Servicer or such subcontractor of all authority of the Master Servicer to service the Receivables as provided for under this AgreementAgreement and the Supplement, including, without limitation, including all authority over all Collections which shall on the date of transfer such Service Transfer be held by the Master Servicer for depositdeposit to any Settlement Lock-Box Account, the Master Collection Account, the Series Collection Account, the Series Payment Account, the Series Reserve Account, the Trustee’s Account or the Issuer’s Account, for payment to any Claimant in respect of any Split Payment, or which have been deposited by the ServicerMaster Servicer to any Settlement Lock-Box Account, in the Master Collection Account, the Finance Charge Account orSeries Collection Account, the Principal Series Payment Account, the Series Reserve Account or any other account, or which shall thereafter be received with respect to the Receivables, and in (ii) assisting the Successor Servicer and in enforcing all rights to Insurance Proceedsany designated subcontractor of such Successor Servicer. The Master Servicer shall, at its expense, as soon as practicable, and in any event within three Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and disks), which evidence the affected Series Receivables and the other Series Trust Assets, and which are necessary or desirable to collect the affected Series Receivables, and shall promptly transfer its electronic records relating to make the Receivables same available to the Successor Servicer or the Trustee or its designee at a place selected by the Successor Servicer or the Trustee or its designee and in such electronic form as the Successor Servicer or the Trustee or its designee may reasonably request request, and shall promptly transfer (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Receivables and Split Payments in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all other recordssuch cash, correspondence checks and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose instruments to the Successor Servicer information of any kind which or the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect Trustee or its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicerdesignee.
Appears in 1 contract
Servicer Defaults. If any one of the following events (each, a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to deliver to the related Trustee for deposit in any of the Accounts or the Certificate Distribution Account any required payment or to direct the Indenture Trustee to make any paymentrequired distributions therefrom, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 or to make which failure continues unremedied for a drawing under any Letter period of Credit on or before the date occurring five three Business Days after discovery of such failure by an officer of the Servicer or after the date on which written notice of such paymentfailure, transfer, deposit or drawing or such instruction or notice is required requiring the same to be made remedied, shall have been given (i) to the Servicer by the related Trustee or given(ii) to the Servicer and to the Trustees by the Holders of Notes, as evidencing not less than 25% of the case may be, under Outstanding Amount of the terms of this Agreement or any Supplement; orNotes;
(b) failure on the part of by the Servicer (or so long as the Servicer is AHFC, the Seller) duly to observe or to perform in any material respect any other covenants or agreements of the Servicer (or so long as the Servicer is AHFC, the Seller) set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholdersother Basic Document, which continues failure shall (i) materially and adversely affect the rights of Certificateholders or Noteholders and (ii) continue unremedied for a period of 60 90 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given (A) to the Servicer or the Seller (as the case may be) by the Trustee, related Trustee or (B) to the Servicer or the Seller (as the case may be), and to the related Trustee by the Holders of Investor Certificates Notes, evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; Outstanding Amount of the Notes;
(c) the occurrence of an Insolvency Event with respect to the Seller or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7Servicer; or
(cd) any representationfailure by the Servicer, warranty any Subservicer or certification made any Subcontractor to deliver any information, report, certification, attestation or accountants' letter when and as required (including, without limitation, any failure by the Servicer to identify any Subcontractor "participating in this Agreement, any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when madethe servicing function" within the meaning of Item 1122 of Regulation AB), which has a material adverse effect on the rights of the Certificateholders and which continues to be incorrect in any material respect unremedied for a period of 60 ten calendar days after the date on which written notice of such failureinformation, requiring the same report, certification or accountants' letter was required to be remedieddelivered then, shall have been given to and in each and every case, other than in the case of a Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; or
Default set forth in clause (d) the Servicer shall (a) become insolvent, (b) fail to pay its debts generally as they become due, (c) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenabove, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 5125% of the Aggregate Investor AmountOutstanding Amount of the Notes (or, if the Notes have been paid in full and the Indenture has been discharged in accordance with its terms, by holders of Certificates evidencing not less than 25% of the Percentage Interests) by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "Termination Notice"), may terminate all the rights and obligations (other than the obligations set forth in Section 6.02 that accrued on or prior to the effective date of the termination) of the Servicer under this Agreement. In the case of a Servicer Default set forth in clause (d) above, so long as the Servicer Default shall not have been remedied, the Issuer (or the Administrator, acting on behalf of the Issuer) shall be entitled to terminate, in its sole discretion, the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate servicer under this Agreement). After receipt by ; provided that to the extent that any provision of this Agreement expressly provides for the survival of certain rights or obligations following termination of the Servicer as servicer, such provision shall be given effect; provided, however, that the Issuer shall not be entitled to terminate the rights and obligations of the Servicer pursuant to this section if a failure of the Servicer to identify a Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Regulation AB was attributable solely to the role or functions of such Termination Notice, and on Subcontractor with respect to receivables other than the Receivables. On or after the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2specified in such written notice, all authority and power of the Servicer under this Agreement shall Agreement, whether with respect to the Notes, the Certificates or the Receivables or otherwise, shall, without further action, pass to and be vested in a the Indenture Trustee or such Successor ServicerServicer as may be appointed under Section 7.02; and, without limitation, the Indenture Trustee is and the Owner Trustee are hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf for the benefit of the predecessor Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of servicing rightsthe Receivables and related documents, or otherwise. The predecessor Servicer agrees to shall cooperate with the Trustee and such Successor Servicer and the Trustees in effecting the termination of the responsibilities and rights of the predecessor Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, including the transfer to the Successor Servicer for administration by it of all authority over all Collections which cash amounts that shall on at the date of transfer time be held by the predecessor Servicer for deposit, or which have been deposited by the predecessor Servicer, in the Collection Account, Accounts or the Finance Charge Certificate Distribution Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, Receivables and all Payments Ahead that shall at that time by held by the predecessor Servicer. All reasonable costs and expenses (including servicer conversion costs and attorneys' fees) incurred in assisting connection with transferring the Receivable Files to the Successor Servicer and amending this Agreement to reflect such succession as Servicer pursuant to this Section shall be paid by the predecessor Servicer upon presentation of reasonable documentation of such costs and expenses. Any costs or expenses incurred in enforcing all rights to Insurance Proceeds. The connection with a Servicer Default shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing constitute an expense of administration under Title 11 of the Receivables in United States Bankruptcy Code or any other applicable Federal or State bankruptcy laws. Upon receipt of notice of the manner and at such times as the Successor occurrence of a Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidentialDefault, the Successor Servicer Indenture Trustee shall be required give notice thereof to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicereach Rating Agency.
Appears in 1 contract
Samples: Sale and Servicing Agreement (American Honda Receivables 2006-1 Owner Trust)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 the terms of this Agreement or to make a drawing under any Letter of Credit Supplement on or before the date occurring five Business Days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; or;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, interests hereunder of the Investor Certificateholders of any Series or Class and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 2550% of the Aggregate Investor AmountAmount (or, with respect to any such failure that does not relate to all Series, 50% of the aggregate Investor Amount of all Series to which such failure relates); or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; or8.02, 8.07 or 13.08, a Responsible Officer of the Trustee has actual knowledge of such delegation and such delegation continues unremedied for 15 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing more than 50% of the Aggregate Investor Amount;
(c) any representation, warranty or certification made by the Servicer in this Agreement, Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series or Class and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 2550% of the Aggregate Investor AmountAmount (or, with respect to any such representation, warranty or if certification that does not relate to all Series, 50% of the aggregate Investor Amount of all Series to which such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicerrepresentation, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuitywarranty or certification relates); or
(d) the Servicer shall (a) become insolventconsent to the appointment of a conservator or receiver or liquidator in any insolvency, (b) fail readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or 84 the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable insolvency or reorganization statute, consent to, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, andits obligations; then, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenof any Servicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, Trustee or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate Investor Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer under this Agreement Agreement; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with subsection 10.02(c) to act as a Successor Servicer and in and receives an Officer's Certificate of the Servicer to the Receivables effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall offer the Transferors the right at their option to purchase the Certificateholders' Interest on the Distribution Date next succeeding 60 days after the receipt by the Servicer of a Termination Notice. The purchase price for the Certificateholders' Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Transferors shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such option. If any of the Transferors exercise such option, such Transferors shall (x) if short-term deposits or long-term unsecured debt obligations of the parent of such Transferors are not rated at the time at least P-3 or Baa3, respectively, by Moody's, deliver to the Trustee an Opinion of Counsel (which must be xx xxxxpendent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Transferors have received reasonably equivalent value and as to the solvency of such Transferors, the purchase would not be considered a fraudulent transfer and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the proceeds thereof (other than its rights and interest, if any, as Holder terms of the Exchangeable Certificate under this Agreement)each Supplement. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.210.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 10.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. Notwithstanding the foregoing, any delay in or failure of performance under subsection 10.01(a) for a period of 5 Business Days or under subsection 10.01(b) or (c) for a period of 60 days (in addition to any period provided in subsection 10.01(a), (b) or (c)) shall not constitute a Servicer Default until the expiration of such additional 5 Business Days or 60 days, respectively, if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, terrorism, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer shallfrom using its best efforts to perform its respective obligations in a timely manner in accordance with the terms of this Agreement and any Supplement and the Servicer shall provide the Trustee, on each Rating Agency, the date Holders of any servicing transferthe Transferor Certificates and the Investor Certificateholders with an Officer's Certificate giving prompt notice of such failure or delay by it, transfer all together with a description of its rights and efforts to so perform its obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Fleet Credit Card Master Trust Ii)
Servicer Defaults. If any one of the following events (herein called a ----------------- "Servicer Default") shall occur have occurred and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit on or before the date occurring five Business Days after the date such payment, transfer, deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; or
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; or
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; or
(d) the Servicer shall (a) become insolvent, (b) fail to pay its debts generally as they become due, (c) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; then, so long as such Servicer Default shall not have been remedied, either the Trustee, ---------------- on behalf of the Noteholders or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less Noteholders having more than 5150% of the Aggregate Investor Amountaggregate Noteholders' interests of all outstanding Notes upon written notice, by notice then given in writing shall have the right to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and to appoint a new Servicer (the "Successor Servicer") as provided in Section 11.2 of the Base Indenture. A ------------------ ------------ Successor Servicer must be legally qualified and have the corporate power and authority to service the Receivables and must have demonstrated the proceeds thereof (other than its rights ability to service a portfolio of similar receivables in accordance with applicable industry standards of skill and interest, if any, as Holder of the Exchangeable Certificate under this Agreement)care. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such any Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsServicer. The Servicer shall promptly transfer all of its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall deliver, or cause to be delivered, to the Successor Servicer licenses, or the Successor Servicer shall otherwise be satisfied with its ability, to use any computer programs, material tapes, disks, cassettes and data necessary to permit the collection of the Receivables by the Successor Servicer without the participation of TWA. To the extent that compliance with this Section 10.1 9.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Upon the event of a Servicer shallDefault, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit Servicer shall provide to the Successor ServicerTrustee access to its facilities, systems, equipment and leasehold agreements.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Trans World Airlines Inc /New/)
Servicer Defaults. If any one of the following events (a "“Servicer Default"”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; or;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2510% of the Aggregate aggregate unpaid principal amount of all Investor AmountCertificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Section 8.7; orSections 8.02 and 8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement, Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2510% of the Aggregate aggregate unpaid principal amount of all Investor AmountCertificates (or, with respect to any such representation, warranty or if certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicerrepresentation, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuitywarranty or certification relates); or
(d) the Servicer shall (a) become insolventconsent to the appointment of a conservator or receiver or liquidator in any insolvency, (b) fail readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable insolvency or reorganization statute, consent to, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, andits obligations; then, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenof any Servicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate aggregate unpaid principal amount of all Investor AmountCertificates, by notice then given in writing to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a "“Termination Notice"”), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interestthereof; provided, however, if any, within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as Holder a Successor Servicer and receives an Officer’s Certificate of the Exchangeable Certificate under this Agreement)Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Trustee pursuant to Section 10.210.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a Successor Servicer“Service Transfer”); and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-attorney- in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsServicer. The Servicer shall promptly within 20 Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism), public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer shallfrom using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, on the date Sellers, any Series Enhancer and the Investor Certificateholders with an Officer’s Certificate giving prompt notice of any servicing transfersuch failure or delay by it, transfer all together with a description of its rights and efforts so to perform its obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Pooling and Servicing Agreement
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 the terms of this Agreement or to make a drawing under any Letter of Credit Supplement on or before the date date, occurring five ten Business Days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; or;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, interests hereunder of the Investor Certificateholders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2533% of the Aggregate aggregate unpaid principal amount of all Investor AmountCertificates (or, with respect to any such failure that does not relate to all Series, 33% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall delegate its duties under this Agreement, Agreement except as permitted by Section 8.7; or8.02 and 8.07, a Responsible officer, of the Trustee as actual knowledge of such delegation and such delegation continues unremedied for 15 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of -71- 77 Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates;
(c) any representation, warranty or certification made by the Servicer in this Agreement, Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect in any material respect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates Certificates, evidencing Undivided Interests aggregating not less than 2533% of the Aggregate aggregate unpaid principal amount of all Investor AmountCertificates (with respect to any such representation, warranty or if certification that does not relate to all Series, 33% of the aggregate unpaid principal amount of all Series to which such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicerrepresentation, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuitywarranty or certification relates); or
(d) the Servicer shall (a) become insolventconsent to the appointment of a conservator or receiver or liquidator in any insolvency, (b) fail readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs, shall have been entered against the Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 90 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable insolvency or reorganization statute, consent to, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, andits obligations; then, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenof any Servicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate Investor Amountaggregate unpaid principal amount of all outstanding Series, by written notice then given in writing to the Servicer (and to the Trustee and any Series Enhancer entitled thereto pursuant to the relevant Supplement if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights thereof; provided, however, that if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and interestreceives an Officer's Certificate of the Servicer or the Depositor, to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Depositor which would permit the Depositor to purchase the Certificateholders Interest on the Distribution Date in the next calendar month. The Trustee shall first solicit bids from unaffiliated third parties and, if anyat least two bids are obtained, as Holder the Trustee will offer the right of first refusal to the Exchangeable Certificate under this Agreement). Depositor at a purchase price equal to the higher of such After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.210.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; Servicer (a "Service Transfer") and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, hereunder including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at as such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 10.01 shall require the Servicer to disclose to the Successor Servicer information Information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem been necessary to protect its interestinterests. Notwithstanding the foregoing, any delay in or failure of performance under Section 10.01(a) for a period of five Business Days or under Section 10.01(b) or (c) or a period of 90 days (in addition to any period provided in Section 10.01(a), (b) or (c)) shall not constitute a Servicer Default until the expiration of such additional five Business Days or 90 days, respectively, if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer shallfrom using its best efforts to perform its respective obligations in a timely manner in accordance with the terms of this Agreement and any Supplement and the Servicer shall provide the Trustee, on each -73- 79 Rating Agency, any Series Enhancer entitled thereto pursuant to the date relevant Supplement, each Holder of any servicing transferthe Depositor's Certificate and the Investor Certificateholders with an Officer's Certificate giving prompt notice of such failure or delay by it, transfer all together with a description of its rights and efforts, to so perform its obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Asset Backed Securities Corp)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 Article IV or to instruct the Trustee to make a drawing any required drawing, withdrawal, or payment under any Letter of Credit on or before the date occurring five Enhancement, in each case, within one Business Days Day after the date of the receipt by the Servicer of written notice from the Trustee or any Purchaser Representative that such payment, transfer, deposit deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement Agreement, any Supplement or any Supplement; orReceivables Purchase Agreement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement Agreement, any Supplement or any Supplement Receivables Purchase Agreement, which has a material adverse effect on (i) the CertificateholdersServicer's ability to collect the Receivables or otherwise perform its obligations under the Agreement, any Supplement or any Receivables Purchase Agreement or (ii) the collectibility or value of the Receivables, and which continues unremedied for a period of 60 45 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, a Purchaser Representative or an Enhancement Provider, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor AmountInterest of any Certificate Series, or an Enhancement Provider and such material adverse effect continues for such period; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; or;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement or any Receivables Purchase Agreement or in any certificate delivered pursuant to this Agreement Agreement, any Supplement or any Supplement Receivables Purchase Agreement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; or(i) the
(d) the Servicer shall (a) become insolventconsent to the appointment of a conservator or receiver or liquidator in any insolvency, (b) fail readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, commence or have commenced against it (cunless dismissed within thirty days) voluntarily seekas debtor a proceeding under any applicable insolvency or reorganization statute, consent to, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filingobligations; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Trust Interests and Purchaser Representatives of Receivables Purchase Series aggregating not less more than 5166-2/3% of the Aggregate Investor AmountInvestor/Purchaser Interest, by notice then given in writing to the Servicer Servicer, and each Purchaser Representative (and to the Trustee if given by the Investor CertificateholdersCertificateholders or the Purchaser Representatives) (a "Servicer Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder Agreement. The Trustee shall promptly notify any Enhancement Provider of the Exchangeable Certificate under this Agreement)any such Servicer Default. After receipt by the Servicer of such Servicer Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsrights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.1(a), for deposita cumulative period of ten Business Days, or which have been deposited under subsection 10.1(b) or (c), for a cumulative period of sixty Business Days, shall not constitute a Servicer Default if such delay or failure could not be prevented by the Servicer, in exercise of reasonable diligence by the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceedssuch delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages or similar causes. The Servicer preceding sentence shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require not relieve the Servicer from using its best efforts to disclose to perform its obligations in a timely manner in accordance with the Successor Servicer information terms of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing this Agreement and confidentiality agreements as the Servicer shall deem necessary provide the Trustee, any Enhancement Provider, the Seller, and each Purchaser Representative with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to protect perform its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Charming Shoppes Receivables Corp)
Servicer Defaults. If any one of the following events (a "“Servicer Default"”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions to bank holding the Lockbox or notice to the Trustee pursuant to Section 4.5 or ACH Account to make a drawing under any Letter of Credit such payment, transfer or deposit on or before the date occurring five 3 Business Days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement Servicing Agreement, provided however, that where such failure is due to oversight, error or any Supplement; orother reason not including bad faith on the part of Servicer, such 3 Business Day period shall commence upon notice to Servicer from Buyers;
(b) any failure on the part of the Servicer to duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Servicing Agreement or any Supplement which has a material adverse effect on the Certificateholders, and which continues unremedied for a period of 60 30 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; orBuyers;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Servicing Agreement or in any certificate delivered pursuant to this Servicing Agreement or any Supplement shall prove to have been materially incorrect when made, which has a material materially adverse effect on the rights of the Certificateholders Loans (taken as a whole) and which materially adverse effect continues to be incorrect in any material respect for a period of 60 30 days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60Buyers;
(d) any Non-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuityCompliance Event; or
(de) the Servicer shall (a) become insolventconsent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, (b) fail readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to Servicer or of or relating to all or substantially all its property, or an action seeking a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been commenced against Servicer and such action shall have remained undischarged or unstayed for a period of 60 days or an order or decree providing for such relief shall have been entered; or Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable bankruptcy, consent toinsolvency or reorganization statute, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filingobligations; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% of the Aggregate Investor AmountBuyers, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "“Termination Notice"”), may terminate all all, but not less than all, of the rights and obligations of the Servicer as Servicer servicer under this Servicing Agreement and appoint a Successor Servicer, subject to Section 4.2. Notwithstanding the foregoing, a delay in and to or failure of performance shall not constitute a Servicer Default (i) under paragraph (a) above for a period of 10 Business Days after the Receivables and applicable grace period or (ii) under paragraph (b), (c) or (d) above for a period of 15 Business Days after the proceeds thereof (other than its rights and interestapplicable grace period, if anysuch delay or failure could not be prevented by the exercise of reasonable diligence by Servicer and such delay or failure was caused by an act of God or the public enemy, as Holder acts of declared or undeclared war, public disorder, rebellion or sabotage, terrorism, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the Exchangeable Certificate terms of this Servicing Agreement, and Servicer shall provide Buyers with prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations. In addition, if Servicer experiences a material deterioration in its financial condition such that Servicer is unable to fulfill its obligations under this AgreementServicing Agreement in a material respect (such material deterioration in financial condition, a “Financial Condition Event”). After receipt by the , Servicer shall promptly give notice to Buyers of such Termination Notice, Financial Condition Event. Each of Buyers and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant right, at their respective option, to Section 10.2terminate all, all authority and power but not less than all, of the rights and obligations of Servicer as servicer under this Servicing Agreement shall pass to and be vested in have Buyers appoint a Successor Servicer; and, without limitationsubject to Section 4.2, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect providing a Termination Notice to the Receivablesother party upon 90 days prior written notice, and in assisting the Successor unless Servicer and in enforcing all rights to Insurance Proceedscures such Financial Condition Event within such 90 days. The If a Financial Condition Event is not cured within such 90 days, then such Financial Condition Event shall constitute a Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor ServicerDefault.
Appears in 1 contract
Samples: Servicing Agreement (GreenSky, Inc.)
Servicer Defaults. If any one of the following events (each, a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to deliver to the related Trustee for deposit in any of the Accounts or the Certificate Distribution Account any required payment or to direct the Indenture Trustee to make any paymentrequired distributions therefrom, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 or to make which failure continues unremedied for a drawing under any Letter period of Credit on or before the date occurring five three Business Days after discovery of such failure by an officer of the Servicer or after the date on which written notice of such paymentfailure, transfer, deposit or drawing or such instruction or notice is required requiring the same to be made remedied, shall have been given (i) to the Servicer by the related Trustee or given(ii) to the Servicer and to the Trustees by the Holders of Notes, as evidencing not less than 25% of the case may be, under Outstanding Amount of the terms of this Agreement or any Supplement; orNotes;
(b) failure on the part of by the Servicer (or so long as the Servicer is AHFC, the Seller) duly to observe or to perform in any material respect any other covenants or agreements of the Servicer (or so long as the Servicer is AHFC, the Seller) set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholdersother Basic Document, which continues failure shall (i) materially and adversely affect the rights of Certificateholders or Noteholders and (ii) continue unremedied for a period of 60 90 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given (A) to the Servicer or the Seller (as the case may be) by the Trustee, related Trustee or (B) to the Servicer or the Seller (as the case may be), and to the related Trustee by the Holders of Investor Certificates Notes, evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or Outstanding Amount of the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7Notes; or
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights occurrence of the Certificateholders and which continues to be incorrect in any material an Insolvency Event with respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by Seller or the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; or
(d) the Servicer shall (a) become insolvent, (b) fail to pay its debts generally as they become due, (c) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; then, and in each and every case, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 5125% of the Aggregate Investor AmountOutstanding Amount of the Notes (or, if the Notes have been paid in full and the Indenture has been discharged in accordance with its terms, by holders of Certificates evidencing not less than 25% of the Percentage Interests) by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "Termination Notice"), may terminate all of the rights and obligations (other than the obligations set forth in Section 6.02 that accrued on or prior to the effective date of the termination) of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on On or after the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2specified in such written notice, all authority and power of the Servicer under this Agreement shall Agreement, whether with respect to the Notes, the Certificates or the Receivables or otherwise, shall, without further action, pass to and be vested in a the Indenture Trustee or such Successor ServicerServicer as may be appointed under Section 7.02; and, without limitation, the Indenture Trustee is and the Owner Trustee are hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf for the benefit of the predecessor Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of servicing rightsthe Receivables and related documents, or otherwise. The predecessor Servicer agrees to shall cooperate with the Trustee and such Successor Servicer and the Trustees in effecting the termination of the responsibilities and rights of the predecessor Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, including the transfer to the Successor Servicer for administration by it of all authority over all Collections which cash amounts that shall on at the date of transfer time be held by the predecessor Servicer for deposit, or which have been deposited by the predecessor Servicer, in the Collection Account, Accounts or the Finance Charge Certificate Distribution Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, Receivables that shall at that time by held by the predecessor Servicer. All reasonable costs and expenses (including servicer conversion costs and attorneys' fees) incurred in assisting connection with transferring the Receivable Files to the Successor Servicer and amending this Agreement to reflect such succession as Servicer pursuant to this Section shall be paid by the predecessor Servicer upon presentation of reasonable documentation of such costs and expenses. Any costs or expenses incurred in enforcing all rights to Insurance Proceeds. The connection with a Servicer Default shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing constitute an expense of administration under Title 11 of the Receivables in United States Bankruptcy Code or any other applicable Federal or State bankruptcy laws. Upon receipt of notice of the manner and at such times as the Successor occurrence of a Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidentialDefault, the Successor Servicer Indenture Trustee shall be required give notice thereof to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicereach Rating Agency.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Honda Auto Receivables 2008-1 Owner Trust)
Servicer Defaults. If any one of the following events (a "“Servicer Default"”) shall occur and be continuingcontinuing after the Certificate Trust Termination Date:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee Issuer pursuant to Section 4.5 8 of the Indenture Supplement or to instruct the Indenture Trustee to make a drawing any required drawing, withdrawal, or payment under any Letter of Credit on or before the date occurring Enhancement, in each case, within five (5) Business Days after the date of the receipt by the Servicer of written notice from the Indenture Trustee that such payment, transfer, deposit deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement Agreement, any Indenture Supplement or any Supplement; orthe Indenture;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement Agreement, any Indenture Supplement or any Supplement the Indenture which has a material adverse effect on (i) the CertificateholdersServicer’s ability to collect the Receivables or otherwise perform its obligations under this Agreement, any Indenture Supplement or the Indenture or (ii) the collectability or value of the Receivables, and which continues unremedied for a period of 60 forty-five (45) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee, or to the Servicer and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor AmountOutstanding Amount of any Series and such material adverse effect continues for such period; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; or5.7;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Indenture Supplement or the Indenture or in any certificate delivered pursuant to this Agreement Agreement, any Indenture Supplement or any Supplement the Indenture shall prove to have been incorrect when made, which has a material adverse effect on (i) the rights Servicer’s ability to collect the Receivables or otherwise perform its obligations under this Agreement, any Indenture Supplement or the Indenture or (ii) the collectability or value of the Certificateholders Receivables, and which continues to be incorrect in any material respect for a period of 60 forty-five (45) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, Indenture Trustee or to the Servicer and the Indenture Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, or if Outstanding Amount of any Series and such failure cannot be cured within material adverse effect continues for such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuityperiod; or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (a60) become insolvent, (b) fail days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, commence or have commenced against it (cunless dismissed within thirty (30) voluntarily seekdays) as debtor a proceeding under any applicable insolvency or reorganization statute, consent to, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filingobligations; then, so long as such Servicer Default shall not have been remedied, either the Indenture Trustee, or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less more than 5166-2/3% of the Aggregate Investor Outstanding Amount, by notice then given in writing to the Servicer Servicer, (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "“Servicer Termination Notice"”), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Servicer Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Indenture Trustee pursuant to Section 10.27.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsrights and obligations. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal or any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsProceeds applicable to the Issuer. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 7.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, obligations under the Letter of Credit any Enhancement with respect to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 7.1(a), for a cumulative period of ten (10) Business Days, or under subsection 7.1(b) or (c), for a cumulative period of sixty (60) Business Days, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trustee and the Transferor, with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Alliance Data Systems Corp)
Servicer Defaults. If any one Upon the occurrence of the following events (a "Servicer Default") shall occur , and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit on or before the date occurring five Business Days after the date such payment, transfer, deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; or
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; or
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; or
(d) the Servicer shall (a) become insolvent, (b) fail to pay its debts generally as they become due, (c) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; then, so long as such Servicer Default shall not have been remedied, either remedied or waived by the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% of the Aggregate Investor Amount, by Administrative Agent:
(A) By notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (such notice being a "“Termination Notice"”), the Administrative Agent may terminate all but not less than all of the rights and obligations of the Servicer as Servicer servicer under this Loan Agreement and in and any related Loan Document with respect to which such notice was so given. None of Administrative Agent, Collateral Agent, the Receivables and Paying Agent or the proceeds Calculation Agent shall be deemed to have knowledge of a Servicer Default until a Responsible Officer thereof has received written notice thereof.
(other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). B) After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee Administrative Agent pursuant to Section 10.217.2, all authority and power of the Servicer under this Loan Agreement and each other Loan Document shall pass to and be vested in such Successor Servicer (a Successor Servicer“Servicing Transfer”); and, without limitation, the Trustee Administrative Agent is hereby authorized authorized, empowered and empowered instructed (upon the failure of the Servicer to cooperatecooperate or to execute or deliver such documents or instruments) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer Servicing Transfer including, without limitation, all actions necessary or advisable to collect and direct payments in respect of servicing rightsCollections and to enforce the Collateral Agent’s rights and remedies with respect to the Collateral. The initial Sucessor Servicer shall be the Backup Servicer, subject to the conditions set forth herein and the ability of the Backup Servicer to appoint a subservicer for certain functions. The Servicer hereby agrees to cooperate cooperate, at its sole cost and expense, with the Trustee Administrative Agent and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder and under the applicable Loan Documents, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service on behalf of the Receivables Administrative Agent the Sites and the Contracts as provided for under this AgreementLoan Agreement and under the other applicable Loan Documents, including, without limitation, all including such authority over all Collections which shall on the date of transfer such Servicing Transfer be held in trust by the Servicer for deposit, deposit to any of the Accounts hereunder or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Accountany other account, or which shall thereafter be received with respect to the ReceivablesSites and the Contracts, and (ii) assisting the Successor Servicer. The Servicer shall, at its sole cost and expense, as soon as practicable, and in assisting any event within three (3) Business Days of such Servicing Transfer, (A) assemble such documents, instruments and other records (including computer tapes and disks), which evidence the Successor Servicer affected Collateral, and in enforcing all rights which are necessary or desirable to Insurance Proceeds. The Servicer collect the affected Sites or Contracts and shall promptly transfer its electronic records relating to make the Receivables same available to the Successor Servicer or the Administrative Agent or its designee at a place selected by the Successor Servicer or the Administrative Agent and in such electronic form as the Successor Servicer or the Administrative Agent may reasonably request request, and shall promptly transfer (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections in respect of the Sites or the Contracts in a manner acceptable to the Successor Servicer and the Administrative Agent, and, promptly upon receipt, remit all other recordssuch cash, correspondence checks and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose instruments to the Successor Servicer information of any kind which or the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect Administrative Agent or its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicerdesignee.
Appears in 1 contract
Samples: Loan and Security Agreement (Digital Landscape Group, Inc.)
Servicer Defaults. If any one of the following events (a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit on or before the date occurring five Business Days after the date such payment, transfer, deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; or
(b) failure on the part of the Servicer or any Co-Servicer duly to observe or perform in any material respect any other of the covenants or agreements of the Servicer or Co-Servicer set forth in this Agreement or any Supplement Relevant Document which has a material adverse effect Material Adverse Effect on the Certificateholders, interests of the Beneficiaries as a whole or of the Investor Beneficiaries of any Applicable Series and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer or, if applicable, any Co-Servicer by Investor Beneficiaries representing in aggregate more than one-half of the aggregate Investor Interests of any Applicable Series adversely affected thereby (copied to the Receivables Trustee) and continues to have a Material Adverse Effect on the interests of an Investor Beneficiary of any Applicable Series for such period;
(b) delegation by the Trustee, Servicer or to the any Co-Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or the Servicer shall delegate its duties under this AgreementAgreement to any other entity, except as permitted by Section 8.7; orClause 3.7;
(c) any relevant representation, warranty or certification made by the Servicer or any Co-Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove hereto proves to have been incorrect when made, which has a material adverse effect Material Adverse Effect on the rights interests of the Certificateholders Investor Beneficiaries of any Applicable Series and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer or, if applicable, any Co-Servicer by an Investor Beneficiary or Investor Beneficiaries representing in aggregate more than one-half of the Trustee, or aggregate Investor Interests of any Applicable Series affected thereby (copied to the Servicer Receivables Trustee) and continues to have a Material Adverse Effect on the Trustee by the Holders interests of an Investor Certificates evidencing Undivided Interests aggregating not less than 25% Beneficiary of the Aggregate Investor Amount, or if any Applicable Series affected for such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; orperiod;
(d) the Servicer or any Co-Servicer shall consent to or take any corporate action relating to the appointment of a receiver, administrator, administrative receiver, liquidator, trustee or similar officer of it or relating to all or substantially all of its revenues and assets or an order of the court is made for its winding-up, dissolution, administration or reorganisation (aexcept for a solvent re-organisation) become insolventand such order shall have remained in force undischarged or unstayed for a period of 60 days or a receiver, administrator, administrative receiver, liquidator, trustee or similar officer of it or relating to all of its revenues and assets is legally and validly appointed;
(be) fail a duly authorised officer of the Servicer or any Co-Servicer shall admit in writing that the Servicer or such Co-Servicer is unable to pay its debts generally as they become due, (cfall due within the meaning of Section 123(1) voluntarily seek, consent to, of the Insolvency Xxx 0000 or acquiesce in the Servicer or such Co-Servicer makes a general assignment for the benefit of or benefits a composition with its creditors or voluntarily suspends payment of any Debtor Relief Lawits obligations with a view to the general readjustment or rescheduling of its indebtedness, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; then, then so long as such Servicer Default shall not have been remedied, either remedied the Trustee, Beneficiaries acting together or (as the Holders of case may be) the Investor Certificates evidencing Undivided Interests aggregating not less Beneficiaries representing in aggregate more than 51662/3% of the Aggregate Investor AmountInterest, by notice then given in writing to the Servicer or, if applicable, the Co-Servicer (and copied to the Trustee if given by the Investor CertificateholdersReceivables Trustee) (a "Termination NoticeTERMINATION NOTICE"), may terminate all of the rights and obligations of the Servicer and any Co-Servicer as Servicer and Co-Servicer respectively under this Agreement. For the avoidance of doubt, any Termination Notice given in accordance with this Clause 4.1 shall terminate the appointment of both the Servicer and any Co-Servicer regardless of which entity was the subject of the Servicer Default. Notwithstanding the foregoing, a delay in or failure of performance referred to in Clause 4.1(a), (b) or (c) for a period of 60 Business Days, shall not constitute a Servicer Default if such delay or failure could not have been prevented by the exercise of reasonable diligence by the Servicer or Co-Servicer, as the case may be, and such delay or failure was caused by an act of God, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power cuts or similar causes. The preceding sentence shall not relieve the Servicer or Co-Servicer from using reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and in and to the Receivables any relevant agreement and the proceeds thereof (other than its rights and interestServicer and, if anyapplicable, as Holder the Co-Servicer shall provide any Enhancement Provider, the Transferor, any Additional Transferor and each Beneficiary with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of the Exchangeable Certificate under this Agreement). After receipt by the Servicer cause of such Termination Notice, failure or delay and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant its efforts so to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer perform its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Beneficiaries Servicing Agreement (Barclaycard Funding PLC)
Servicer Defaults. If any one of the following events (a ----------------- "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit Article IV on or before the date occurring five Business Days after the date such payment, transfer, deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; orAgreement, which failure continues unremedied for a period of five Business Days;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agreement, which has a material adverse effect on the Certificateholders, Certificateholders and which continues unremedied for a period of 60 days after the earlier of discovery by a Servicing Officer or the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Investor Amount; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7Certificate Principal Balance and continues to materially adversely affect such Certificateholders for such period; or
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders and which continues to be incorrect in any material respect for a period of 60 30 days after the earlier of discovery by a Servicing Officer or the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor the Certificates evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Investor Amount, or if Certificate Principal Balance and continues to materially adversely affect such failure cannot be cured within Certificateholders for such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuityperiod; or
(d) the Servicer shall (a) become insolventconsent to the appointment of a conservator or receiver or liquidator in any insolvency, (b) fail readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable insolvency or reorganization statute, consent to, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filingobligations; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate Investor Amount, Certificate Principal Balance by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.29.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsrights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 9.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 9.1(a) for a period of 10 Business Days or under subsection 9.1(b) or (c) for a period of 60 Business Days in addition to any period provided in subsection 9.1(a), (b) or (c) shall not constitute a Servicer Default for such additional 10 or 60 Business Days if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages, communications outages, computer failure or similar causes. The preceding sentence shall not relieve the Servicer shallfrom using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, on the date Transferor and the Holders of any servicing transferCertificates with an Officer's Certificate giving prompt notice of such failure or delay by it, transfer all together with a description of the cause of such failure or delay and its rights and efforts so to perform its obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Servicer Defaults. If any one of the following events (each, a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice credit to the Trustee pursuant to Section 4.5 or to make a drawing Collection Account any amount required under any Letter of Credit on or before the date occurring five Business Days after the date such payment, transfer, deposit or drawing or such instruction or notice is required this Agreement to be made so deposited or given, as the case may be, under the terms of this Agreement or any Supplement; or
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholderscredited, which failure continues unremedied for a period of 60 days three Business Days after discovery by the Servicer or receipt by the Servicer of written notice of such failure from the Issuer, the Indenture Trustee or the Insurer or after discovery of such failure by an officer of the Servicer;
(b) the Insurer, the Indenture Trustee or the Issuer shall not have received a report in accordance with Section 3.09 by the Servicer Report Date with respect to which such report is due and which shall continue unremedied for a period of one day after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; orgiven;
(c) any representationfailure on the part of the Seller, warranty the Issuer or certification made by the Servicer in this Agreement, any Supplement duly to observe or to perform in any certificate delivered pursuant to material respect any other covenants or agreements of the Seller or the Servicer set forth in this Agreement or any Supplement shall prove to have been incorrect when madeother Basic Document, which has a material adverse effect on failure shall (i) materially and adversely affect the rights of the Certificateholders Noteholders, the Insurer, the Issuer, the Owner Trustee or the Indenture Trustee and which continues to be incorrect in any material respect (ii) continue unremedied for a period of 60 30 days after the date on which the Seller, the Issuer, the Custodian or the Servicer shall have knowledge of such failure or written notice of such failure, requiring the same to be remedied, shall have been given (A) to the Servicer Seller or the Servicer, as the case may be, by the TrusteeInsurer, the Issuer, the Owner Trustee or the Indenture Trustee or (B) to the Servicer Seller or the Servicer, as the case may be, and to the Issuer and the Indenture Trustee by Noteholders, acting together as a single class, evidencing in the Holders of Investor Certificates evidencing Undivided Interests aggregating aggregate not less than 25% of the Aggregate Investor Amountoutstanding principal amount of the Notes or, or if such failure cannot be cured within such 60-day period owing to causes beyond so long as no Insurer Default has occurred and is continuing, by the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; orInsurer;
(d) the entry of a decree or order for relief by a court or regulatory authority having jurisdiction in respect of the Servicer shall or the Seller in an involuntary case under the federal bankruptcy laws, as now or hereafter in effect, or another present or future, federal or state, bankruptcy, insolvency or similar law, or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Servicer or the Seller or of any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Servicer or the Seller and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the commencement of an involuntary case under the federal bankruptcy laws, as now or hereinafter in effect, or another present or future federal or state bankruptcy, insolvency or similar law and such case is not dismissed within 60 days;
(ae) become insolventthe commencement by the Servicer or the Seller of a voluntary case under the federal bankruptcy laws, (b) fail as now or hereafter in effect, or any other present or future, federal or state, bankruptcy, insolvency or similar law, or the consent by the Servicer or the Seller to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Servicer or the Seller or of any substantial part of its property or the making by the Servicer or the Seller of an assignment for the benefit of creditors or the failure by the Servicer or the Seller generally to pay its debts generally as they such debts become duedue or the taking of corporate action by the Servicer or the Seller in furtherance of any of the foregoing;
(f) any change of control of the Servicer in violation of the covenant set forth in Section 6.02 hereof;
(g) the Servicer shall have failed in the reasonable opinion of the Insurer to service the Contracts in accordance with the Servicing Standards and such failure shall have continued unremedied for 30 days after written notice of such failure shall have been delivered to the Servicer by the Insurer;
(h) any representation, warranty or statement of the Servicer or the Seller made in this Agreement or any certificate, report or other writing delivered pursuant hereto shall prove to be incorrect in any material respect as of the time when the same shall have been made (c) voluntarily seekexcluding, consent tohowever, any representation or warranty as to which Section 2.03 or 3.07 shall be applicable so long as the Servicer or the Seller shall be in compliance with Section 2.03 or 3.07, as the case may be), and the incorrectness of such representation, warranty or statement has a material adverse effect on the Noteholders or the Insurer and, within 30 days after written notice thereof shall have been given to the Servicer or the Seller by the Indenture Trustee or the Issuer or by Noteholders, acting together as a single class, evidencing in the aggregate not less than 25% of the outstanding principal amount of the Notes, or acquiesce in so long as no Insurer Default has occurred, by the benefit or benefits of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntaryInsurer, the petition instituting same is circumstance or condition 76 in respect of which such representation, warranty or statement was incorrect shall not dismissed within 90 days after its filinghave been eliminated or otherwise cured; thenthen and in each and every case, so long as such Servicer Default shall not have been remedied, either (i) if no Insurer Default has occurred and is continuing, the TrusteeInsurer or (ii) if an Insurer Default has occurred and is continuing, or the Holders Indenture Trustee acting at the direction of Investor Certificates (a) if the Notes have not been paid in full, the Noteholders evidencing Undivided Interests aggregating not less than 5125% of the Aggregate Investor Amountoutstanding amount of the Notes, acting together as a single Class, by notice then given in writing to the Servicer (and to the Insurer, the Indenture Trustee and the Issuer if given by the Investor CertificateholdersNoteholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After Upon such termination, termination of the Servicer as custodian, if the Servicer is acting as such, can be made pursuant to Section 2.08. On or after the receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2written notice, all authority and power of the Servicer under this Agreement shall Agreement, whether with respect to the Notes, the Contracts or otherwise, shall, without further action, pass to and be vested in a the Indenture Trustee or such Successor Servicer; Servicer as may be appointed under Section 7.02 and, without limitation, the Indenture Trustee is and the Issuer are hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of servicing rightsthe Contracts and related documents, or otherwise. The Servicer agrees to shall cooperate with the Trustee Indenture Trustee, the Insurer and such Successor Servicer the Issuer in effecting the termination transfer of the responsibilities and rights of the Servicer under this Agreement (whether due to conduct servicing hereundertermination, includingresignation or otherwise), without limitation, including the transfer to the Indenture Trustee or such Successor Servicer Servicer, as applicable, for administration by it of all authority of cash amounts that (i) shall at the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer time be held by the Servicer for depositdeposit in, or which shall have been deposited by the ServicerServicer in, in the Collection Account, the Finance Charge Account or, the Principal Account, or which (ii) shall thereafter be received by it with respect to the Receivables, and in assisting any Contract. The predecessor Servicer shall pay all costs of the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer associated with its electronic records relating transition to the Receivables to the role of Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer (whether due to the Successor Servicer all other recordstermination, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicerresignation or otherwise).
Appears in 1 contract
Samples: Sale and Servicing Agreement (Auto Nations Receivables Corp)
Servicer Defaults. If any one of the following events (a "“Servicer Default"”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 the terms of this Agreement or to make a drawing under any Letter of Credit Supplement on or before the date occurring five Business Days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; or;
(b) failure on the part of the Servicer to duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, interests hereunder of the Investor Certificateholders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate aggregate unpaid principal amount of all Investor AmountCertificates (or, with respect to any such failure that does not relate to all Series, 25% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall delegate its duties under this Agreement, except as permitted by Section Sections 8.2 and 8.7; or, a Responsible Officer of the Trustee has actual knowledge of such delegation and such delegation continues unremedied for 15 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 25% of the aggregate unpaid principal amount of all Investor Certificates;
(c) any representation, warranty or certification made by the Servicer in this Agreement, Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Enhancement) and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate aggregate unpaid principal amount of all Investor AmountCertificates (or, with respect to any such representation, warranty or if certification that does not relate to all Series, 25% of the aggregate unpaid principal amount of all Series to which such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicerrepresentation, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuitywarranty or certification relates); or
(d) the Servicer shall (a) become insolventfail generally to, (b) fail to or admit in writing its inability to, pay its debts generally as they become due, (c) voluntarily seek, consent to, ; or acquiesce a proceeding shall have been instituted in a court having jurisdiction in the benefit premises seeking a decree or benefits order for relief in respect of the Servicer in an involuntary case under any Debtor Relief Law, or (d) become for the appointment of a party to (receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or be made other similar official of such Person or for any substantial part of its property, or for the subject of) winding-up or liquidation of its affairs and, if instituted against the Servicer, any such proceeding provided shall continue undismissed or unstayed and in effect, for a period of 60 consecutive days, or any of the actions sought in such proceeding shall occur; or the commencement by the Servicer, of a voluntary case under any Debtor Relief Law, or such Person’s consent to the entry of an order for relief in an involuntary case under any Debtor Relief Law, or consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or other than as a creditor similar official of such Person or claimantfor any substantial part of its property, andor any general assignment for the benefit of creditors; or such Person or any subsidiary of such Person shall have taken any corporate action in furtherance of any of the foregoing actions; then, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenof any Servicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, Trustee or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate aggregate unpaid principal amount of all Investor AmountCertificates, by notice then given in writing to the Servicer (and to the Trustee and any Enhancement Provider entitled thereto pursuant to the relevant Supplement if given by the Investor Certificateholders) (a "“Termination Notice"”), may terminate all of but not less than all the rights and obligations of the Servicer Servicer, as Servicer Servicer, under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interestthereof; provided, however, if any, within 60 days of receipt of a Termination Notice the Trustee is unable to obtain any bids from Eligible Servicers in accordance with subsection 10.2(c) to act as Holder a Successor Servicer and receives an Officer’s Certificate of the Exchangeable Certificate under this Agreement)Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall offer the Transferor the right at its option to purchase the Certificateholders’ Interest and the interest in the Trust Assets represented by any Participation on the Distribution Date occurring in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Transferor shall notify the Trustee prior to the Record Date for the related Distribution Date of the purchase if it is exercising such option. If it exercises such option, the Transferor shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Transferor, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a Successor Servicer“Service Transfer”); and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such the Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such the Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary appropriate to protect its interestinterests. Notwithstanding the foregoing, any delay in or failure of performance under subsection 10.1(a) for a period of five Business Days or under subsection 10.1(b) or (c) for a period of 60 days (in addition to any period provided in subsection 10.1(a), (b) or (c)) shall not constitute a Servicer Default until the expiration of such additional five Business Days or 60 days, respectively, if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer shallfrom the obligation to use its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and any Supplement and the Servicer shall provide the Trustee, on each Rating Agency, any Enhancement Provider entitled thereto pursuant to the date relevant Supplement, the Holder of any servicing transferthe Transferor Certificate and the Investor Certificateholders with an Officer’s Certificate giving immediate notice of such failure or delay by it, transfer all together with a description of its rights and efforts to so perform its obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer ITT to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit required hereunder on or before the date occurring five (5) Business Days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement Agreement; provided, however, that any such failure caused by a nonwillful act of ITT shall not constitute a Servicer Default if ITT promptly remedies such failure within five (5) Business Days after receiving notice of such failure or any Supplement; orotherwise becoming aware of such failure;
(b) failure on the part of the Servicer ITT duly to observe or perform in any material respect any other covenants or agreements of the Servicer ITT set forth in this Agreement or any Supplement Agreement, which has a material an adverse effect on Yamaha's rights in the Certificateholders, Receivables and which continues unremedied for a period of 60 sixty (60) days after the date on which the written notice of such failure requiring the same to be remedied shall have been given to ITT and which continues to adversely affect Yamaha's rights in the Receivables, or ITT shall delegate its duties under this Agreement;
(c) any representation, warranty or certification made by ITT in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an adverse effect on Yamaha's rights in the Receivables and which continues to be incorrect in any material respect and which continues to affect adversely Yamaha's right in the Receivables for a period of sixty (60) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer ITT by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; or
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuityYamaha; or
(d) ITT shall consent to the Servicer appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to ITT or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against ITT and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (a60) become insolvent, (b) fail days; or ITT shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable insolvency or reorganization statute, consent to, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filingobligations; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% of the Aggregate Investor AmountYamaha, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) ITT (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer ITT as Servicer under this Agreement and in in, to and to under the Receivables and the proceeds thereof and appoint a new Servicer (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreementa "Service Transfer"). After receipt by the Servicer ITT of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee Yamaha pursuant to Section 10.24.2, all authority and power of the Servicer ITT under this Agreement shall pass to and be vested in a such Successor Servicer; and, without limitation, the Trustee Yamaha is hereby authorized and empowered (upon the failure of the Servicer ITT to cooperate) to execute and deliver, on behalf of the ServicerITT, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer ITT to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Servicer ITT agrees to cooperate with the Trustee Yamaha and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer ITT to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer ITT to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer ITT for deposit, or which have been deposited by the ServicerITT, in the Collection Account, the Finance Charge Account or, the Principal Concentration Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceedsrecoveries. The Servicer ITT shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 4.1 shall require the Servicer ITT to disclose to the Successor Servicer information of any kind which the Servicer ITT reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer ITT shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in Section 4.1(a) for a period of five (5) Business Days after the applicable grace period or under Section 4.1(b) or (c) for a period of ten (10) Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by ITT and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages or similar causes. The Servicer shallpreceding sentence shall not relieve ITT from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and ITT shall provide Yamaha with an officer's certificate giving prompt notice of such failure or delay by it, on together with a description of the date cause of such failure or delay and its efforts so to perform its obligations. ITT shall immediately notify Yamaha in writing of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor ServicerServicer Default.
Appears in 1 contract
Samples: Servicing Agreement (Yamaha Motor Receivables Corp)
Servicer Defaults. If any one of the following events (a "“Servicer Default"”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Indenture Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit on or before the date occurring five Business Days after the date such payment, transfer, deposit or drawing deposit, or such instruction or notice is required to be made or givengiven by Servicer, as the case may be, under the terms of this Agreement Agreement, the Indenture or any Indenture Supplement; or
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the CertificateholdersNoteholders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Enhancement), which continues unremedied for a period of 60 days after the date on which written notice of such failurefailure requiring the same to be remedied shall have been given to Servicer by Indenture Trustee, or to Servicer and Indenture Trustee by the Noteholders holding not less than 25% of the Outstanding Amount (or, with respect to any failure that does not relate to all Series, 25% of the aggregate outstanding principal amount of all Series to which such failure relates); or Servicer shall delegate its duties under this Agreement except as permitted by Section 3.2 or 3.7, a Responsible Officer of Indenture Trustee has actual knowledge of such delegation and such delegation continues unremedied for 15 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee, or to the Servicer and the Indenture Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating Noteholders holding not less than 25% of the Aggregate Investor Outstanding Amount; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; or
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders Noteholders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Enhancement) and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee, or to the Servicer and the Indenture Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating Noteholders holding not less than 25% of the Aggregate Investor AmountOutstanding Amount (or, with respect to any such representation, warranty or if certification that does not relate to all Series, 25% of the aggregate outstanding principal amount of all Series to which such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicerrepresentation, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; orwarranty or certification relates);
(d) the Servicer shall (a) become insolventfail generally to, (b) fail to or admit in writing its inability to, pay its debts generally as they become due, (c) voluntarily seek, consent to, ; or acquiesce a proceeding shall have been instituted in a court having jurisdiction in the benefit premises seeking a decree or benefits order for relief in respect of Servicer in an involuntary case under any Debtor Relief Law, or (d) become for the appointment of a party to (receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or be made other similar official of such Person or for any substantial part of its property, or for the subject of) winding-up or liquidation of its affairs and, if instituted against Servicer, any such proceeding provided shall continue undismissed or unstayed and in effect, for a period of 60 consecutive days, or any of the actions sought in such proceeding shall occur; or the commencement by Servicer, of a voluntary case under any Debtor Relief Law, or such Person’s consent to the entry of an order for relief in an involuntary case under any Debtor Relief Law, or consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or other than as a creditor similar official of such Person or claimantfor any substantial part of its property, andor any general assignment for the benefit of creditors; or such Person or any Subsidiary of such Person shall have taken any corporate action in furtherance of any of the foregoing actions; or
(e) with respect to any Series, any other event specified in the Indenture Supplement for such Series, then, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenof any Servicer Default, so long as such Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less Noteholders holding more than 5150% of the Aggregate Investor Outstanding Amount, by notice then given in writing to the Servicer (and to Indenture Trustee and any Enhancement Provider entitled thereto pursuant to the Trustee relevant Indenture Supplement if given by the Investor CertificateholdersNoteholders) (a "“Termination Notice"”), may terminate all of but not less than all the rights and obligations of the Servicer Servicer, as Servicer Servicer, under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interestthereof. Upon the occurrence of a Servicer Default, if any, as Holder the Indenture Trustee shall promptly notify each Rating Agency of such Servicer Default. After termination of the Exchangeable Certificate Servicer’s responsibilities under this Agreement). After receipt by the Servicer of such Termination NoticeAgreement pursuant to Section 4.1 or 4.2, and on the date that a Successor Servicer shall have been appointed by the Indenture Trustee pursuant to Section 10.24.3, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a Successor Servicer“Service Transfer”); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Indenture Trustee and such the Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, hereunder including the transfer to such the Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 4.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary appropriate to protect its interestinterests. Notwithstanding the foregoing, any delay in or failure of performance under Section 4.1(a) for a period of five Business Days or under Section 4.1(b) or (c) for a period of 60 days (in addition to any period provided in Section 4.1(a), (b) or (c)) shall not constitute a Servicer Default until the expiration of such additional five Business Days or 60 days, respectively, if such delay or failure could not be prevented by the exercise of reasonable diligence by Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve Servicer shallfrom the obligation to use its best efforts to perform its obligations in a timely manner in accordance with this Agreement and Servicer shall provide Indenture Trustee, on each Rating Agency, any Enhancement Provider entitled thereto pursuant to the date relevant Indenture Supplement and Transferor with an Officer’s Certificate giving immediate notice of any servicing transfersuch failure or delay by it, transfer all together with a description of its rights and efforts to so perform its obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Servicing Agreement (Bread Financial Holdings, Inc.)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 Article IV or to instruct the Trustee to make a drawing under any Letter of Credit required withdrawal or payment on or before the date occurring five Business Days days after the date such payment, transfer, deposit deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any applicable Supplement; orprovided, however, that any such failure caused by a nonwillful act of the Servicer shall not constitute a Servicer Default if the Servicer promptly remedies such failure within five business days after receiving notice thereof;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Supplement, which has a material adverse effect on the Certificateholders, Investor Certificateholders of any Series (without regard to the amount of any Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Invested Amount of any Series adversely affected thereby and continues to materially adversely affect such Investor AmountCertificateholders for such period; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; or;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights Investor Certificateholders of any Series (without regard to the Certificateholders amount of any Enhancement) and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Invested Amount of any Series adversely affected thereby and continues to materially adversely affect such Investor Amount, or if Certificateholders for such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuityperiod; or
(d) the Servicer shall (a) become insolventconsent to the appointment of a conservator or receiver or liquidator in any insolvency, (b) fail readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable insolvency or reorganization statute, consent to, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filingobligations; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate Investor Invested Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsrights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Excess Funding Account or, the Principal and any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsProceeds and Net Interchange (if any) applicable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, obligations under the Letter of Credit Enhancement with respect to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to under subsection 10.1(a) for a period of ten (10) Business Days after the applicable grace period or under subsection 10.1(b) or (c) for a period of sixty (60) Business Days after the 95 applicable grace period shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Enhancement Provider, the Transferor and the Holders of Investor Certificates with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First Bank Corporate Card Master Trust)
Servicer Defaults. If any one of the following events (a ----------------- "Servicer Default") shall occur and be continuing:continuing with respect to the Servicer: ----------------
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to Section 4.5 make such payment, transfer or deposit or to make a drawing give notice to the Trustee as to any action to be taken under any Letter of Credit Enhancement Agreement on or before the date occurring five Business Days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; orAgreement, which failure is not cured within five Business Days after notice of such failure from the Trustee to the Servicer.
(b) failure on the part of the Servicer duly to observe or perform its covenant not to create any Lien on any Receivable which failure has a material adverse effect on the Certificateholders and which continues unremedied for a period of sixty (60) days after written notice to it of such failure; provided, -------- however, that a "Servicer Default" shall not be deemed to have occurred if the ------- Seller or the Servicer shall have repurchased the related Receivables or, if applicable, all of the Receivables during such period in accordance with the provisions of this Agreement;
(c) failure on the part of the Servicer duly to observe or perform any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement (other than with respect to those specified in clause (b) above and with respect to clauses (viii), (ix) and (ix) under Section 3.3(a) hereof, to the extent the terms of Section 3.3(c) hereof have been complied with) which failure has a material adverse effect on the Certificateholders, Certificateholders and which continues unremedied for a period of 60 thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; or;
(cd) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series and which material adverse effect continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee; provided, however, that a "Servicer -------- ------- Default" shall not be deemed to have occurred if the Seller or to the Servicer and shall have repurchased the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicerrelated Receivables or, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing applicable, all of such failure Receivables during such period in accordance with diligence and continuity; orthe provisions of this Agreement;
(de) the Servicer shall (a) become insolventconsent to the appointment of a conservator or receiver or liquidator or other similar official in any bankruptcy, (b) fail insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator or other similar official in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of sixty days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable bankruptcy, consent toinsolvency or reorganization statute, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, andits obligations; then, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenof any Servicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% of the Aggregate Investor Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all but not less than all ------------------ of the rights and obligations (other than its obligations that have accrued up to the time of such termination) of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement)thereof. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; Servicer (a "Service Transfer") and, without limitation, ---------------- the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-in- fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer; provided that in no event shall the Servicer incur any liability for any such action by the Trustee. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsServicer. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance under Section 10.1(a) for a period of 10 Business Days or under Section 10.1(b), (c) or (d) for a period of 60 Business Days, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement, and the Servicer shall provide the Trustee, any Agents, any Enhancement Providers, the Seller and the Certificateholders with an Officers' Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations. The Servicer shall, on shall immediately notify the date Trustee in writing of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor ServicerServicer Default.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Deutsche Floorplan Receivables L P)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give notice or instructions or notice to the Indenture Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit required withdrawal or payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer, deposit or drawing or such instruction or notice Servicer is required to be made or given, as the case may be, do so under the terms of this Agreement Agreement, the Indenture or any Indenture Supplement; or, or within the applicable grace period, which will not exceed 35 Business Days;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect an Adverse Effect on the CertificateholdersNoteholders of any Series, Class or Tranche and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer Servicer, the Owner Trustee, the Indenture Trustee and the Trustee applicable Collateral Agent by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Section 8.7; orSections 7.02, 7.05 and 7.06;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect an Adverse Effect on the rights of the Certificateholders Noteholders of any Series, Class or Tranche and which Adverse Effect continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer Servicer, the Owner Trustee, the Indenture Trustee and the Trustee applicable Collateral Agent by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or if certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicerrepresentation, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; orwarranty or certification relates);
(d) the Servicer shall (a) become insolventconsent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, (b) fail readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable bankruptcy, consent toinsolvency or reorganization statute, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or its obligations; or
(d) become a party to (or be made the subject ofe) any proceeding provided for by other Servicer Default described in any Debtor Relief Law, other than Indenture Supplement.
(a) to act as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; then, so long as such Successor Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% of the Aggregate Investor Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations receives an Officer's Certificate of the Servicer as Servicer under this Agreement and in and to the Receivables and effect that the proceeds thereof (other than its rights and interestServicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, if any, as Holder the Indenture Trustee shall assume the role of the Exchangeable Certificate under this Agreement)Successor Servicer. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 10.210.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a Successor Servicer; "Service Transfer") and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables Collateral provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, Account for the Finance Charge Account or, the Principal Accountapplicable Asset Pool, or which shall thereafter be received with respect to the ReceivablesCollateral, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsProceeds and Interchange (if any) applicable to the Trust. The Servicer shall promptly within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables Collateral in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer shallfrom using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, on the date Owner Trustee, the applicable Collateral Agent and each Transferor with an Officer's Certificate giving prompt notice of any servicing transfersuch failure or delay by it, transfer all together with a description of its rights and efforts so to perform its obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Bank One Delaware National Association)
Servicer Defaults. If any one of the following events (subject to the last paragraph of this Section 10.01, a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 Article IV or to instruct the Trustee to make a drawing any required drawing, withdrawal or payment under any Letter of Credit Enhancement on or before the later of (i) the date occurring five 10 Business Days after the date such payment, transfer, deposit deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement Agreement, or any Supplement; or(ii) three Business Days after written notice of such failure shall have been given to the Servicer;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agreement, which has a material adverse effect on the Certificateholders, Investor Certificateholders of any Series and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2550% of the Aggregate unpaid Initial Investor AmountInterest of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; or8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights Investor Certificateholders of the Certificateholders any Series and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2550% of the Aggregate unpaid Initial Investor Amount, or if Interest of any Series adversely affected thereby and continues to materially adversely affect such failure cannot be cured within Investor Certificateholders for such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuityperiod; or
(d) the Servicer shall (a) become insolventconsent to the appointment of a conservator or receiver or liquidator in any insolvency, (b) fail readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable insolvency or reorganization statute, consent to, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filingobligations; then, so long as such Servicer Default shall not have been remediedremedied or waived, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate aggregate unpaid Initial Investor AmountInterests of all outstanding Series, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations (other than unsatisfied obligations for acts or omissions during its tenure as Servicer) of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.210.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsrights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, or the Principal Account and any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsProceeds and Interchange (if any) applicable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 10.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, obligations under the Letter of Credit Enhancement with respect to any Series to the Successor Servicer. The Servicer being terminated shall bear all costs of a Service Transfer, including but not limited to those of the Trustee reasonably allocable to specific employees and overhead, legal fees and expenses, accounting and financial consulting fees and expenses, and costs of amending this Agreement, if necessary. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 days, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Enhancement Provider, the Transferor and the Holders of Investor Certificates with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First Bankcard Master Credit Card Trust)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give notice or instructions or notice to the Indenture Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit required withdrawal or payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer, deposit or drawing or such instruction or notice Servicer is required to be made or given, as the case may be, do so under the terms of this Agreement Agreement, the Indenture or any Indenture Supplement; or, or within the applicable grace period, which will not exceed 35 Business Days;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect an Adverse Effect on the CertificateholdersNoteholders of any Series, Class or Tranche and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer Servicer, the Owner Trustee, the Indenture Trustee and the Trustee applicable Collateral Agent by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Section 8.7; orSections 7.02, 7.05 and 7.06;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect an Adverse Effect on the rights of the Certificateholders Noteholders of any Series, Class or Tranche and which Adverse Effect continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer Servicer, the Owner Trustee, the Indenture Trustee and the Trustee applicable Collateral Agent by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or if certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicerrepresentation, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; orwarranty or certification relates);
(d) the Servicer shall (a) become insolventconsent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, (b) fail readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable bankruptcy, consent toinsolvency or reorganization statute, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or its obligations; or
(d) become a party to (or be made the subject ofe) any proceeding provided for by other Servicer Default described in any Debtor Relief Law, other than Indenture Supplement;
(a) to act as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; then, so long as such Successor Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% of the Aggregate Investor Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations receives an Officer's Certificate of the Servicer as Servicer under this Agreement and in and to the Receivables and effect that the proceeds thereof (other than its rights and interestServicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, if any, as Holder the Indenture Trustee shall assume the role of the Exchangeable Certificate under this Agreement)Successor Servicer. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 10.210.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a Successor Servicer; "Service Transfer") and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables Collateral provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, Account for the Finance Charge Account or, the Principal Accountapplicable Asset Pool, or which shall thereafter be received with respect to the ReceivablesCollateral, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsProceeds and Interchange (if any) applicable to the Trust. The Servicer shall promptly within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables Collateral in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer shallfrom using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, on the date Owner Trustee, the applicable Collateral Agent and each Transferor with an Officer's Certificate giving prompt notice of any servicing transfersuch failure or delay by it, transfer all together with a description of its rights and efforts so to perform its obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Chase Manhattan Bank Usa)
Servicer Defaults. If any one of the following events (a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit on or before the date occurring five Business Days after the date such payment, transfer, deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; or
(b) failure on the part of the Servicer or any Co-Servicer duly to observe or perform in any material respect any other of the covenants or agreements of the Servicer or Co-Servicer set forth in this Agreement or any Supplement Relevant Document which has a material adverse effect Material Adverse Effect on the Certificateholders, interests of the Beneficiaries as a whole or of the Investor Beneficiaries of any Applicable Series and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer or, if applicable, any Co-Servicer by Investor Beneficiaries representing in aggregate more than one-half of the aggregate Investor Interests of any Applicable Series adversely affected thereby (copied to the Receivables Trustee) and continues to have a Material Adverse Effect on the interests of an Investor Beneficiary of any Applicable Series for such period;
(b) delegation by the Trustee, Servicer or to the any Co-Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or the Servicer shall delegate its duties under this AgreementAgreement to any other entity, except as permitted by Section 8.7; orClause 3.7;
(c) any relevant representation, warranty or certification made by the Servicer or any Co-Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove hereto proves to have been incorrect when made, which has a material adverse effect Material Adverse Effect on the rights interests of the Certificateholders Investor Beneficiaries of any Applicable Series and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer or, if applicable, any Co-Servicer by an Investor Beneficiary or Investor Beneficiaries representing in aggregate more than one-half of the Trustee, or aggregate Investor Interests of any Applicable Series affected thereby (copied to the Servicer Receivables Trustee) and continues to have a Material Adverse Effect on the Trustee by the Holders interests of an Investor Certificates evidencing Undivided Interests aggregating not less than 25% Beneficiary of the Aggregate Investor Amount, or if any Applicable Series affected for such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; orperiod;
(d) the Servicer or any Co-Servicer shall consent to or take any corporate action relating to the appointment of a receiver, administrator, administrative receiver, liquidator, trustee or similar officer of it or relating to all or substantially all of its revenues and assets or an order of the court is made for its winding-up, dissolution, administration or reorganisation (aexcept for a solvent re-organisation) become insolventand such order shall have remained in force undischarged or unstayed for a period of 60 days or a receiver, administrator, administrative receiver, liquidator, trustee or similar officer of it or relating to all of its revenues and assets is legally and validly appointed;
(be) fail a duly authorised officer of the Servicer or any Co-Servicer shall admit in writing that the Servicer or such Co-Servicer is unable to pay its debts generally as they become due, (cfall due within the meaning of Section 123(1) voluntarily seek, consent to, of the Insolvency Act 1986 or acquiesce in the Servicer or sxxx Xx-Xervicer makes a general assignment for the benefit of or benefits a composition with its creditors or voluntarily suspends payment of any Debtor Relief Lawits obligations with a view to the general readjustment or rescheduling of its indebtedness, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; then, then so long as such Servicer Default shall not have been remedied, either remedied the Trustee, Beneficiaries acting together or (as the Holders of case may be) the Investor Certificates evidencing Undivided Interests aggregating not less Beneficiaries representing in aggregate more than 5166 2/3% of the Aggregate Investor AmountInterest, by notice then given in writing to the Servicer or, if applicable, the Co-Servicer (and copied to the Trustee if given by the Investor CertificateholdersReceivables Trustee) (a "Termination NoticeTERMINATION NOTICE"), may terminate all of the rights and obligations of the Servicer and any Co-Servicer as Servicer and Co-Servicer respectively under this Agreement. For the avoidance of doubt, any Termination Notice given in accordance with this Clause 4.1 shall terminate the appointment of both the Servicer and any Co-Servicer regardless of which entity was the subject of the Servicer Default. Notwithstanding the foregoing, a delay in or failure of performance referred to in Clause 4.1(a), (b) or (c) for a period of 60 Business Days, shall not constitute a Servicer Default if such delay or failure could not have been prevented by the exercise of reasonable diligence by the Servicer or Co-Servicer, as the case may be, and such delay or failure was caused by an act of God, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power cuts or similar causes. The preceding sentence shall not relieve the Servicer or Co-Servicer from using reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and in and to the Receivables any relevant agreement and the proceeds thereof (other than its rights and interestServicer and, if anyapplicable, as Holder the Co-Servicer shall provide any Enhancement Provider, the Transferor, any Additional Transferor and each Beneficiary with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of the Exchangeable Certificate under this Agreement). After receipt by the Servicer cause of such Termination Notice, failure or delay and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant its efforts so to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer perform its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Beneficiaries Servicing Agreement (Gracechurch Receivables Trustee LTD)
Servicer Defaults. If any one of the following events (a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit such payment, transfer or deposit on or before the date occurring five (5) Business Days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement Agreement, the Indenture or any Indenture Supplement; or;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, an Adverse Effect and which continues unremedied for a period of 60 sixty (60) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2510% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Section 8.7; orSections 5.02 and 5.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect an Adverse Effect on the rights of the Certificateholders Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which Adverse Effect continues to be incorrect in any material respect for a period of 60 sixty (60) days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2510% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or if certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicerrepresentation, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; orwarranty or certification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (a60) become insolvent, (b) fail days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seek, consent to, or acquiesce in the benefit or benefits file a petition to take advantage of any Debtor Relief Lawapplicable bankruptcy, insolvency or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% of the Aggregate Investor Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicer.reorganization statute,
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Associates Credit Card Receivables Corp)
Servicer Defaults. If any one of the following events (a ----------------- "Servicer Default") shall occur and be continuing:: ----------------
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit such payment, transfer or deposit on or before the date occurring five Business Days days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; or;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, which failure continues unremedied for a period of 60 30 days after (x) the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by any Control Party or (y) the Trustee, or to date on which the Servicer and the Trustee by the Holders has actual knowledge of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; orsuch failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders and which continues to be incorrect made in any material respect which inaccuracy continues unremedied for a period of 60 30 days after (x) the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by any Control Party or (y) the Trustee, or to date on which the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing has actual knowledge of such failure with diligence and continuityfailure; or
(d) the Servicer shall (a) become insolvent, (b) fail to pay its debts generally as they become due, (c) voluntarily seek, consent to, to or acquiesce in the benefit or benefits of any Debtor Relief Law, Law or (d) become becomes a party to (or be made the subject of) any proceeding provided for by under any Debtor Relief Law, other than as a creditor or claimant, and, and in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 60 days after of its filing; or the Servicer shall assign its duties under this Agreement, except as permitted by this Agreement; then, in the event of any Servicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, or the Requisite Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% of the Aggregate Investor Amount, by notice then given in writing to the Servicer and the Transferor (with a copy thereof to each Rating Agency) and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the ------------------ rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement)thereof. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicer.10.02: -------------
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Compucom Systems Inc)
Servicer Defaults. If any one Any of the following events (shall constitute a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer in its capacity as Servicer to make any payment, transfer or deposit required by any Transaction Document to be made by it or to give instructions or to give notice to the Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit on or before the date occurring five Business Days after the date such payment, transfertransfer or deposit, deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; orwhich failure continues unremedied for one Business Day,
(b) failure on the part of the Servicer in its capacity as Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement other Transaction Document, which failure has a material adverse effect on the Certificateholders, which Holders of any Series or Purchased Interest and continues unremedied for a period of 60 30 days after the earlier of (i) the date on which written notice of such the failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by any Investor Certificateholder or Purchaser and (ii) the Holders date on which Servicer became aware of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or the such failure,
(c) Servicer shall delegate assign its duties under this Agreement, except as permitted by Section 8.7; orSections 3.1(b) and 8.3,
(cd) any Daily Report or Monthly Report shall fail to have been correct in any material respect when made or delivered, or shall not have been delivered when required under the terms hereof, and in either case such condition continues unremedied for a period of three Business Days,
(e) any other representation, warranty or certification made by the Servicer in this Agreement, any Supplement Transaction Document or in any certificate or other document or instrument delivered pursuant to this Agreement or any Supplement Transaction Document shall prove fail to have been incorrect correct in any material respect when mademade or delivered, which failure has a material materially adverse effect on the rights of the Certificateholders or any Purchased Interest and which materially adverse effect continues to be incorrect in any material respect unremedied for a period of 60 15 days after the earlier of (i) the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, Trustee or to the Servicer and the Trustee by any Investor Certificateholder or Purchaser and (ii) the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if date on which Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing became aware of such failure with diligence and continuity; failure, or
(df) any Bankruptcy Event shall occur with respect to Servicer. In the Servicer shall (a) become insolvent, (b) fail to pay its debts generally as they become due, (c) voluntarily seek, consent to, or acquiesce in the benefit or benefits event of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenServicer Default, so long as such Servicer Default shall not have been remedied, either Trustee may (and, at the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% direction of the Aggregate Investor AmountRequired Investors, shall), by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of (but not less than all) the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables Receivables, the Related Transferred Assets and the proceeds thereof thereof. Servicer shall provide notice of a Servicer Default in accordance with Section 10.3. Notwithstanding the foregoing, a delay in or failure in performance referred to in subsection (other than a) for a period of ten Business Days after the applicable grace period, or in subsection (b) or (d) for a period of 30 days after the applicable grace period, shall not constitute a Servicer Default if the delay or failure could not have been prevented by the exercise of reasonable diligence by Servicer and the delay or failure was caused by an act of God or the public enemy, riots, acts of war, acts of terrorism, epidemics, flood, embargoes, weather, landslides, fire, earthquakes or similar causes. The preceding sentence shall not relieve Servicer from using its rights and interest, if any, as Holder best efforts to perform its obligations in a timely manner in accordance with the terms of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination NoticeTransaction Documents, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request give Trustee, each Agent and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all Transferor an Officer's Certificate notifying them of its rights and obligations, if any, under the Letter of Credit to the Successor Servicerfailure or delay.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ameriserve Food Distribution Inc /De/)
Servicer Defaults. If any one of the following events (a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by on the part of the Servicer to deliver the Receivables Activity Reports required under Section 3.07(c), to make any payment, transfer or deposit deposit, or to give instructions or to give notice to the Issuer or the Indenture Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; orAgreement;
(bi) failure on the part of the Servicer duly to observe and perform its covenants to give payment instructions to Obligors pursuant to Section 3.05(f); to segregate Pool Collections pursuant to Section 3.05(g), to provide records pursuant to Section 3.07, to file financing or continuation statements provided to it pursuant to Section 3.02, or breach by the Servicer of any of its negative covenants set forth in Section 3.06, which failure or breach continues unremedied for ten calendar days, or (ii) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agreement, which failure has a material adverse effect Material Adverse Effect on the Certificateholders, which rights of the holders of any Series of Notes (determined without giving effect to any third-party credit enhancement) and continues unremedied for a period of 60 days 30 days, in each case, after the date on which written notice of such failure, requiring the same to be remedied, shall have has been given to the Servicer by the TrusteeIssuer, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% Issuer on behalf of the Aggregate Investor Amount; Majority Investors, or the Servicer shall assign or delegate its duties under this Agreement, Agreement except as permitted by Section 8.7; orSections 3.01(b) and 7.02;
(c) any representation, warranty or certification made by the Servicer in this Agreement, Agreement or in any Supplement other Transaction Document or in any certificate delivered pursuant to this Agreement or any Supplement shall prove proves to have been incorrect in any material respect when made, which failure has a material adverse effect Material Adverse Effect on the rights of the Certificateholders holders of any Series of Notes (determined without giving effect to any third-party credit enhancement) and which failure continues to be incorrect in any material respect unremedied for a period of 60 30 days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have has been given to the Servicer by the TrusteeIssuer, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% Issuer on behalf of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuityMajority Investors; or
(d) an Event of Bankruptcy occurs with respect to the Servicer shall (a) become insolvent, (b) fail to pay its debts generally as they become due, (c) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, andServicer; then, in the event of any such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenServicer Default, so long as such the Servicer Default shall not have been remedied, either remedied the TrusteeIndenture Trustee may, or at the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% direction of the Aggregate Investor AmountMajority Investors, the Indenture Trustee shall, by written notice then given in writing to the Servicer (and to the Indenture Trustee if given by the Investor CertificateholdersMajority Investors) (a "Termination NoticeTERMINATION NOTICE"), may terminate all or any part of the rights and obligations of the Servicer as Servicer under this Agreement Agreement. Notwithstanding the foregoing, a delay in or failure of performance referred to in clause (a), (b) or (c) for a period of 10 Business Days after the applicable grace period shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes not within the Servicer's control. The preceding sentence does not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in and a timely manner in accordance with the terms of this Agreement.
(e) The Indenture Trustee acting at the direction of the Majority Investors shall be entitled, by giving a Termination Notice to the Receivables Servicer, to terminate all or any part of the rights and obligations of CMSC as Servicer if:
(i) the proceeds thereof Consolidated Net Worth of PHH on the last day of any fiscal quarter is less than the SUM of (i) $500,000,000 PLUS (ii) 50% of Consolidated Net Income, if positive, for each fiscal quarter after September 30, 1999; or
(ii) PHH Indebtedness less Cash Equivalents (owned by PHH or any of its Consolidated Subsidiaries and free of liens (other than its rights liens securing Indebtedness)) exceeds six times Consolidated Net Worth; or
(iii) PHH fails to maintain a long-term unsecured debt rating of at least "BBB-" by Standard & Poor's and interest"Baa3" by Xxxxx'x' PROVIDED that if PHH has no outstanding long-term unsecured debt, if any, as Holder then a shadow rating of PHH may be used to determine compliance with the Exchangeable Certificate under this Agreement)foregoing rating requirement. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 10.29.03, all authority and power of the Servicer under this Agreement (or, in the case of a partial transfer, such authority and power and a proportional portion of the Servicing Fee as is described in the Termination Notice) shall pass to and be vested in the Successor Servicer (a Successor Servicer"SERVICE TRANSFER"); and, without limitation, and the Indenture Trustee is hereby authorized and empowered (empowered, upon the failure of the Servicer to cooperate) , to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Pool Receivables provided for under this Agreement, including, without limitation, including (to the extent transferred) all authority over all Pool Collections which shall that on the date of transfer be are held by the Servicer for deposit, or which have been deposited by the Servicer, Servicer in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be are received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsServicer. The Servicer shall promptly within 20 Business Days of such Termination Notice transfer its electronic records relating to the Pool Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require 9.01 requires the Servicer to disclose to the Successor Servicer information of any kind which that the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem deems reasonably necessary to protect its interestinterests. The Servicer shallbeing terminated (or replaced in part) shall bear all costs of the appointment of a Successor Servicer hereunder, on including but not limited to those of the date Indenture Trustee reasonably allocable to specific employees and overhead, legal fees and expenses, accounting and financial consulting fees and expenses, and costs of any servicing transfer, transfer all of its rights and obligationsamending the Transaction Documents, if any, under the Letter of Credit to the Successor Servicernecessary.
Appears in 1 contract
Servicer Defaults. If any one of the following events (a "“Servicer Default"”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Indenture Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or the Indenture, and which continues unremedied for a period of five (5) Business Days after the earlier of the date on which (A) any SupplementResponsible Officer of the Servicer becomes aware of such failure or (B) written notice thereof shall have been given to such Responsible Officer from any other party to a Transaction Document; or
(b) any failure on the part of the Servicer duly to observe or perform perform, in any material respect (in the sole reasonable determination of the Administrative Agent), any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, Indenture and which continues unremedied for a period of 60 sixty (60) days after the earlier of the date on which written notice (A) any Responsible Officer of the Servicer becomes aware of such failure, requiring the same to be remedied, or (B) written notice thereof shall have been given to such Responsible Officer from any other party to a Transaction Document; provided that the Servicer by the Trusteemateriality qualifier set forth herein shall not apply to any covenant or agreement, or if and to the Servicer and the Trustee extent that observance or compliance with such covenant or agreement is qualified by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; “Adverse Effect” or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7another materiality qualifier; or
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or the Indenture or in any certificate delivered pursuant to this Agreement or any Supplement the Indenture shall prove to have been incorrect when made, which made or deemed made and such failure has a material adverse effect on the rights of Noteholders (as determined by the Certificateholders Administrative Agent in its sole reasonable discretion) and which continues to be incorrect in any material respect unremedied for a period of 60 sixty (60) days after the earlier of the date on which (A) any Responsible Officer of the Servicer becomes aware of such failure or (B) written notice of such failure, requiring the same to be remedied, thereof shall have been given to such Responsible Officer from any other party to a Transaction Document; provided that the Servicer by the Trusteemateriality qualifier set forth herein shall not apply to any representation, warranty or certification, if and to the Servicer and extent that the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% effect of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing making of such failure with diligence and continuityrepresentation, warranty or certification is qualified by “Adverse Effect” or another materiality qualifier; or
(d) an Insolvency Event with respect to the Servicer; or
(e) the Servicer or OneMain Financial or any affiliate thereof shall (a) become insolventhave been terminated or otherwise removed as servicer, (b) fail to pay its debts generally as they become due, (c) voluntarily seek, consent to, master servicer or acquiesce in the benefit or benefits subservicer of any Debtor Relief Lawother personal loan securitization following a servicer default, master servicer default, subservicer default or similar event in connection with such other securitization; or
(df) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, andoccurrence of an Event of Default; then, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenof any Servicer Default, so long as such a Servicer Default shall not have been remediedis continuing, either the Trustee, or Indenture Trustee may (and upon the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% written direction of the Aggregate Investor AmountRequired Noteholders shall), by notice then given in writing to the Servicer, the Issuer, the Issuer Loan Trustee for the benefit of the Issuer, the Back-up Servicer and each Noteholder (and by delivery to the Trustee if given by the Investor CertificateholdersAdministrative Agent) (a "“Termination Notice"), may ”) (i) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in the Indenture and (ii) direct the applicable party to terminate any power of attorney granted to the Receivables Servicer and direct such party to execute a new power of attorney to the proceeds thereof (other than Indenture Trustee or its rights and interest, if any, as Holder designee. The existence of a Servicer Default may be waived with the consent of the Exchangeable Certificate under this AgreementAdministrative Agent (acting at the direction of the Required Noteholders). After receipt by the Servicer of such a Termination Notice, and effective on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2Servicing Transfer Date, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a Successor Servicer“Servicing Transfer”) appointed by the Indenture Trustee pursuant to Section 8.02; and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperatecooperate promptly) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsServicing Transfer. The Servicer agrees to cooperate and to cause each Subservicer to cooperate (and each Subservicer agrees to cooperate) with the Indenture Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder and (ii) transferring all duties and obligations of the Servicer hereunder to such Successor Servicer, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service and administer the Receivables Loans provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal or other applicable Note Account, or which shall thereafter be received with respect to the ReceivablesLoans, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsServicer. The Servicer shall promptly transfer to the Successor Servicer all its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer Loans, together with all other records, correspondence and documents necessary for the continued servicing and administration of the Receivables Loans in the manner and at such times as the Successor Servicer shall reasonably request. Notwithstanding the foregoing, the Servicer shall be allowed to retain a copy of all records, correspondence and documents provided to the Successor Servicer in compliance with the Servicer’s recordkeeping policies or Requirements of Law. The predecessor Servicer shall be responsible for all expenses incurred in transferring the servicing duties to the Successor Servicer. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidentialconfidential or give the Successor Servicer access to software or other intellectual property, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of five (5) Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of sixty (60) days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by a Force Majeure Event. If, following the expiration of such incremental sixty-day grace period in the case of a delay or failure of performance described in paragraph (b) or (c) above, the applicable delay or failure of performance remains outstanding but the Servicer continues to work diligently to remedy such delay or failure of performance, then the grace period shall be extended for a further thirty (30) days upon notice from the Servicer to the Indenture Trustee. The preceding sentences shall not relieve the Servicer shallfrom using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, on the date Issuer and the Depositor with an Officer’s Certificate giving prompt notice of any servicing transfersuch failure or delay by it, transfer all together with a description of its rights and efforts so to perform its obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Sale and Servicing Agreement (OneMain Financial Holdings, Inc.)
Servicer Defaults. If The occurrence of any one or more of the following events (shall constitute a "Servicer Default") shall occur and be continuing:
(a) any failure by Any Designated Servicer or the Servicer Seller shall fail (i) to make any payment, transfer payment or deposit required hereunder when due and such failure shall remain unremedied for one Business Day, (ii) to perform or to give instructions or notice to the Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit on or before the date occurring five Business Days after the date such payment, transfer, deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; or
(b) failure on the part of the Servicer duly to observe or perform in any material respect any term, covenant or agreement hereunder relating to the Receivables, the Related Security, the Hohe Discount or the Collections or (iii) to perform or observe in any material respect any term, covenant or agreement hereunder (other covenants than as referred to in clause (i) or agreements (ii) of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, which continues paragraph (a)) and such failure shall remain unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; orfive Business Days.
(cb) any Any representation, warranty warranty, certification or certification statement made by the Seller, any Designated Servicer or either Originator in this Agreement, any Supplement other Transaction Document or in any certificate other document delivered pursuant to this Agreement or any Supplement hereto shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, when made or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; ordeemed made.
(di) the The Seller, any Designated Servicer or either Originator shall (a) generally not pay its debts as such debts become insolvent, (b) fail due or shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seek, consent to, or acquiesce in shall make a general assignment for the benefit or benefits of any Debtor Relief Law, creditors; or (d) become a party to (or be made the subject ofii) any proceeding provided for shall be instituted by or against the Seller, any Debtor Relief Law, Designated Servicer (other than as Xxxxxxxx) or Hohe seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a creditor receiver, trustee or claimantother similar official for it or any substantial part of its property; or (iii) any proceeding shall be instituted by or against Xxxxxxxx seeking to adjudicate it bankrupt or insolvent, andor seeking liquidation, in winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the event entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or any substantial part of its property unless (A) such proceeding is involuntaryinstituted against Xxxxxxxx and is being contested by Xxxxxxxx in good faith and by appropriate proceedings, the petition instituting same is not dismissed (B) within 90 two Michigan business days after its filing; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% of the Aggregate Investor Amount, by notice then given in writing institution of such proceeding Xxxxxxxx shall have obtained a court order (which may include an interim order) satisfactory to the Servicer (Administrative Agent and to the Trustee if given by Required Investors authorizing the Investor Certificateholders) (a continued transfer of "Termination NoticeReceivables"), may terminate all of "Related Assets" and "Collections" under the rights and obligations of the Servicer as Servicer under this Xxxxxxxx Transfer Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables Receivable Interests hereunder in the manner (and at with the effect) contemplated herein following commencement of such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose proceeding and granting protection to the Successor Servicer information Seller and the Purchasers against subsequent avoidance or subordination of such transfers by the trustee or any kind which the Servicer reasonably deems to be confidential, the Successor Servicer other Person in connection with such proceeding and (C) such proceeding shall be required dismissed within 30 days of the institution thereof; or (iv) the Seller, any Designated Servicer or either Originator shall take any corporate action to enter into such customary licensing and confidentiality agreements as authorize any of the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicer.actions set forth in clause (i) or (iii) above in this subsection (c);
Appears in 1 contract
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuingcontinuing with respect to the Servicer:
(a) any the failure by the Servicer to make any payment, transfer or deposit into the Trust (or to give instructions or notice to the Trustee pursuant to Section 4.5 or to make a drawing under into any Letter of Credit Series Account) on or before the date occurring five Business Days after the date such payment, transfer, transfer or 'SS' 10.01 deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; orAgreement, which failure is not cured within five (5) Business Days following notice thereof from the Trustee;
(b) failure on the part of the Servicer duly to observe or perform its covenant not to create any lien on any Receivable which failure has a material adverse effect on the Certificateholders and which continues unremedied for a period of sixty (60) days after written notice to it of such failure; provided, however, that a "Servicer Default" shall not be deemed to have occurred if BCRC or the Servicer shall have repurchased the related Receivables or, if applicable, all of the Receivables during such period in accordance with the provisions of this Agreement;
(c) failure on the part of the Servicer duly to observe or perform any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement (other than with respect to those specified in clause (b) above and with respect to clauses (vii), (viii) and (ix) under Section 3.03(a) hereof, to the extent the terms of Section 3.03(c) hereof have been complied with) which failure has a material adverse effect on the Certificateholders, Certificateholders or the Variable Funding Certificateholder and which continues unremedied for a period of 60 thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; or;
(cd) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders made and which continues to be incorrect in any material respect for a period of 60 sixty (60) days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to Trustee and as a result of which the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% interests of the Aggregate Investor AmountCertificateholders or the Variable Funding Certificateholder are materially and adversely affected; provided, or if such failure canhowever, that a "Servicer Default" shall not be cured within such 60-day period owing deemed to causes beyond have occurred if BCRC shall have repurchased the control of Servicerrelated Receivables or, if Servicer shall fail to proceed promptly to cure applicable, all of the same and thereafter prosecute Receivables during such period in accordance with the curing provisions of such failure with diligence and continuitythis Agreement; or
(de) the Servicer shall consent to the appointment of a conservator or receiver or liquidator or other similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator or other similar official in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (a60) become insolvent, (b) fail days; or the Servicer shall admit in writing its 'SS' 10.01 inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable bankruptcy, consent toinsolvency or reorganization statute, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of its obligations. In the event of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenServicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% of the Aggregate Investor Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all but not less than all of the rights and obligations (other than its obligations that have accrued up to the time of such termination) of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement)thereof. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.210.02 hereof, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; Servicer (a "Service Transfer") and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer; provided, however, that in no event shall the Servicer incur any liability for any such action taken by the Trustee. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsServicer. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 10.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance under subsection (a) of this Section 10.01 for a period of up to ten (10) Business Days after the applicable grace period or a delay in or failure of performance (or the continuance of any such delay or failure) under subsection (b), (c) or (d) of this Section 10.01 for a period of up to sixty (60) Business Days, shall not constitute a Servicer Default if such delay or failure or 'SS' 10.01 continuance was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its respective obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Enhancement Providers and the Depositor with an Officers' Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations. The Servicer shall, on shall immediately notify the date Trustee in writing of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor ServicerServicer Default.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bombardier Receivables Master Trust I)
Servicer Defaults. If any one of the following events (a "“Servicer Default"”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give notice or instructions or notice to the Indenture Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit required withdrawal or payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer, deposit or drawing or such instruction or notice Servicer is required to be made or given, as the case may be, do so under the terms of this Agreement Agreement, the Indenture or any Indenture Supplement; or, or within the applicable grace period, which will not exceed 35 Business Days;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect an Adverse Effect on the CertificateholdersNoteholders of any Series, Class or Tranche and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer Servicer, the Owner Trustee, the Indenture Trustee and the Trustee applicable Collateral Agent by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Investor Amountaggregate unpaid principal amount of all Series, Classes or Tranches of Notes sustaining such Adverse Effect; or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Section 8.7; orSections 7.02, 7.05 and 7.06;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect an Adverse Effect on the rights of the Certificateholders Noteholders of any Series, Class or Tranche and which Adverse Effect continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer Servicer, the Owner Trustee, the Indenture Trustee and the Trustee applicable Collateral Agent by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Investor Amountaggregate unpaid principal amount of all Series, Classes or if Tranches of Notes to which such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicerrepresentation, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; orwarranty or certification relates;
(d) the Servicer shall (a) become insolventconsent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, (b) fail readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable bankruptcy, consent toinsolvency or reorganization statute, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or its obligations; or
(d) become a party to (or be made the subject ofe) any proceeding provided for by other Servicer Default described in any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filingIndenture Supplement; then, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate Investor Amountaggregate unpaid principal amount of all affected Notes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "“Termination Notice"”), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer under this Agreement Agreement; provided, however, if within 60 days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with subsection 10.02(a) to act as a Successor Servicer and in and receives an Officer’s Certificate of the Servicer to the Receivables and effect that the proceeds thereof (other than its rights and interestServicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, if any, as Holder the Indenture Trustee shall assume the role of the Exchangeable Certificate under this Agreement)Successor Servicer. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 10.210.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a Successor Servicer; “Service Transfer”) and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables Collateral provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, Account for the Finance Charge Account or, the Principal Accountapplicable Asset Pool, or which shall thereafter be received with respect to the ReceivablesCollateral, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsProceeds and Interchange (if any) applicable to the Trust. The Servicer shall promptly within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables Collateral in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer shallfrom using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, on the date Owner Trustee, the applicable Collateral Agent and each Transferor with an Officer’s Certificate giving prompt notice of any servicing transfersuch failure or delay by it, transfer all together with a description of its rights and efforts so to perform its obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (First Usa Credit Card Master Trust)
Servicer Defaults. If any one of the following events (each, a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice credit to the Trustee pursuant to Section 4.5 or to make a drawing Collection Account any amount required under any Letter of Credit on or before the date occurring five Business Days after the date such payment, transfer, deposit or drawing or such instruction or notice is required this Agreement to be made so deposited or given, as the case may be, under the terms of this Agreement or any Supplement; or
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholderscredited, which failure continues unremedied for a period of 60 days two Business Days after discovery by the Servicer or receipt by the Servicer of written notice of such failure from the Issuer, the Indenture Trustee or the Insurer or after discovery of such failure by an officer of the Servicer;
(b) the Insurer, the Indenture Trustee or the Issuer shall not have received a report in accordance with Section 3.08 by the Servicer Report Date with respect to which such report is due and which shall continue unremedied for a period of one day after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; orgiven;
(c) any representation, warranty failure on the part of the Seller or certification made by the Servicer duly to observe or to perform any other covenants or agreements of the Seller or the Servicer set forth in this Agreement, any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when madeother Basic Document, which has a material adverse effect on failure shall (i) materially and adversely affect the rights of the Certificateholders Noteholders, the Insurer, the Issuer, the Owner Trustee or the Indenture Trustee and which continues to be incorrect in any material respect (ii) continue unremedied for a period of 60 30 days after the date on which the Seller, the Custodian or the Servicer shall have knowledge of such failure or written notice of such failure, requiring the same to be remedied, shall have been given (A) to the Servicer Seller or the Servicer, as the case may be, by the TrusteeInsurer, the Issuer, the Owner Trustee or the Indenture Trustee or (B) to the Servicer Seller or the Servicer, as the case may be, and to the Issuer and the Indenture Trustee by Noteholders, acting together as a single class, evidencing in the Holders of Investor Certificates evidencing Undivided Interests aggregating aggregate not less than 25% of the Aggregate Investor AmountOutstanding Principal Amount of the Notes or, or if such failure cannot be cured within such 60-day period owing to causes beyond so long as no Insurer Default has occurred and is continuing, by the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; orInsurer;
(d) the entry of a decree or order for relief by a court or regulatory authority having jurisdiction in respect of the Servicer shall or the Seller in an involuntary case under the federal bankruptcy laws, as now or hereafter in effect, or another present or future, federal or state, bankruptcy, insolvency or similar law, or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Servicer or the Seller or of any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Servicer or the Seller and the continu- ance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the commencement of an involuntary case under the federal bankruptcy laws, as now or hereinafter in effect, or another present or future federal or state bankruptcy, insolvency or similar law and such case is not dismissed within 60 days;
(ae) become insolventthe commencement by the Servicer or the Seller of a voluntary case under the federal bankruptcy laws, (b) fail as now or hereafter in effect, or any other present or future, federal or state, bankruptcy, insolvency or similar law, or the consent by the Servicer or the Seller to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Servicer or the Seller or of any substantial part of its property or the making by the Servicer or the Seller of an assignment for the benefit of creditors or the failure by the Servicer or the Seller generally to pay its debts generally as they such debts become duedue or the taking of corporate action by the Servicer or the Seller in furtherance of any of the foregoing;
(f) any merger or consolidation or sale of assets of the Servicer in violation of the covenant set forth in Section 6.02 hereof;
(g) the Servicer shall have failed in the reasonable opinion of the Insurer to service the Contracts in accordance with the Servicing Standards and such failure shall have continued unremedied for 30 days after written notice of such failure shall have been delivered to the Servicer by the Insurer;
(h) any representation, warranty or statement of the Servicer or the Seller made in this Agreement or the other Basic Documents or any certificate, report or other writing delivered pursuant hereto shall prove to be incorrect in any material respect as of the time when the same shall have been made (c) voluntarily seekexcluding, consent tohowever, any representation or warranty made in this Agreement or any other Basic Document as to which Section 2.03 or 3.06 shall be applicable so long as the Servicer or the Seller shall be in compliance with Section 2.03 or 3.06, as the case may be), and the incorrectness of such representation, warranty or statement has a material adverse effect on the Noteholders or the Insurer and, within 30 days after written notice thereof shall have been given to the Servicer or the Seller by the Indenture Trustee or the Issuer or by Noteholders, acting together as a single class, evidencing in the aggregate not less than 25% of the Outstanding Principal Amount of the Notes, or acquiesce so long as no Insurer Default has occurred, by the Insurer, the circumstance or condition in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured;
(i) the subservicing agreement between World Omni Financial Corp. and the Servicer shall for any reason cease to be in full force and a successor Subservicer acceptable to the Insurer shall not be appointed within 60 days, or if any party thereto denies that it has any further liability thereunder or gives notice to such effect;
(j) the Indenture Trustee shall, for any reason, fail to have a valid perfected first priority security interest in Contracts pledged by the Issuer to the Indenture Trustee the outstanding aggregate Principal Balance of which exceeds 5.00% of the Pool Balance;
(k) unless authorized under Section 5.02, the Seller shall enter into any transaction described in Section 5.02 regardless of the surviving entity; or
(l) an Event of Default as defined in the benefit or benefits of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, Insurance Agreement; then and in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; theneach and every case, so long as such Servicer Default shall not have been remedied, either (i) if no Insurer Default has occurred and is continuing, the TrusteeInsurer or (ii) if an Insurer Default has occurred and is continuing, or the Holders Indenture Trustee acting at the direction of Investor Certificates the Noteholders evidencing Undivided Interests aggregating not less than 5125% of the Aggregate Investor Amountoutstanding amount of the Notes, acting together as a single Class, by notice then given in writing to the Servicer (and to the Insurer, the Indenture Trustee and the Issuer if given by the Investor CertificateholdersNoteholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After Upon such termination, termination of the Servicer as custodian, if the Servicer is acting as such, can be made pursuant to Section 2.08. On or after the receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2written notice, all authority and power of the Servicer under this Agreement shall Agreement, whether with respect to the Notes, the Contracts or otherwise, shall, without further action, pass to and be vested in a the Indenture Trustee or such Successor Servicer; Servicer as may be appointed under Section 7.02 and, without limitation, the Indenture Trustee is and the Issuer are hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of servicing rightsthe Contracts and related documents, or otherwise. The Servicer agrees to shall cooperate with the Trustee Indenture Trustee, the Insurer and such Successor Servicer the Issuer in effecting the termination transfer of the responsibilities and rights of the Servicer under this Agreement (whether due to conduct servicing hereundertermination, includingresignation or otherwise), without limitation, including the transfer to the Indenture Trustee or such Successor Servicer Servicer, as applicable, for administration by it of all authority of cash amounts that (i) shall at the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer time be held by the Servicer for depositdeposit in, or which shall have been deposited by the ServicerServicer in, in the Collection Account, the Finance Charge Account or, the Principal Account, or which (ii) shall thereafter be received by it with respect to the Receivables, and in assisting any Contract. The predecessor Servicer shall pay all costs of the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer associated with its electronic records relating transition to the Receivables to the role of Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer (whether due to the Successor Servicer all other recordstermination, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicerresignation or otherwise).
Appears in 1 contract
Samples: Sale and Servicing Agreement (Auto Nations Receivables Corp)
Servicer Defaults. If any one of the following events ----------------- (a "Servicer Default") shall occur and be continuing:: ----------------
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement the Indenture or any Indenture Supplement; or;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, an Adverse Effect and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2510% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Section 8.7; orSections 5.02 and 5.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect an Adverse Effect on the rights of the Certificateholders Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which Adverse Effect continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2510% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or if certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicerrepresentation, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuitywarranty or certification relates); or
(d) the Servicer shall (a) become insolventconsent to the appointment of a bankruptcy trustee, (b) fail conservator, receiver, liquidator or similar official in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee, conservator, receiver, liquidator or similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable bankruptcy, consent toinsolvency or reorganization statute, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, andits obligations; Then, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenof any Servicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "Termination ----------- Notice"), may terminate all of but not less than all the rights and obligations of ------ the Servicer as Servicer under this Agreement Agreement; provided, however, if within 60 days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with subsection 7.02(c) to act as a Successor Servicer and in and receives an Officer's Certificate of the Servicer to the Receivables and effect that the proceeds thereof (other than Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall grant a right of first refusal to the Transferor which would permit the Transferor at its rights and interest, if any, as Holder option to acquire the Notes on the Distribution Date in the next calendar month. The price for the Notes shall be equal to the sum of the Exchangeable Certificate under this Agreement)amounts specified therefor with respect to each outstanding Series in the related Indenture Supplement. The Transferor shall notify the Indenture Trustee prior to the Record Date for the Distribution Date of the acquisition if it is exercising such right of first refusal. If the Transferor exercises such right of first refusal, the Transferor shall deposit the price into the Collection Account not later than 1:00 p.m., New York City time, on such Distribution Date in immediately available funds. The price shall be allocated and distributed to Noteholders in accordance with the terms of the Indenture and each Indenture Supplement. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 10.27.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a Successor Servicer"Service Transfer"); and, ---------------- without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsServicer. The Servicer shall promptly within 20 Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. The Servicer shallshall pay to the Indenture Trustee and any Successor Servicer the reasonable transition expenses incurred by such person and the agents in connection with any transition of Servicing. Notwithstanding the foregoing, on a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the date applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, Owner Trustee, each Transferor and any servicing transferSeries Enhancer with an Officer's Certificate giving prompt notice of such failure or delay by it, transfer all together with a description of its rights and efforts so to perform its obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Household Credit Card Master Note Trust I)
Servicer Defaults. If any one Each of the following events (shall constitute a "“Servicer Default") shall occur and be continuing”:
(a) any failure by the Servicer to deliver to the Indenture Trustee for deposit in any of the Designated Accounts or to the Owner Trustee for deposit in the Certificate Distribution Account any required payment or to direct the Indenture Trustee to make any paymentrequired distributions therefrom, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit on or before the date occurring in each case which failure continues unremedied for five Business Days after the date such payment, transfer, deposit or drawing or such instruction or earlier of (i) written notice is required to be made received by the Servicer from the applicable Trustee or given, as the case may be, under Agent or (ii) after a Responsible Officer of the terms Servicer obtains actual knowledge of this Agreement or any Supplement; orsuch failure;
(b) any failure on the part of by the Servicer duly to observe or perform in any material respect any other covenants covenant or agreements agreement of the Servicer set forth in this Agreement or any Supplement other Basic Document which has a material adverse effect on failure materially and adversely affects the Certificateholdersvalue, validity, enforceability or collectibility of the Collateral, the enforceability of any Basic Document or the rights, remedies or interests (including security interests) of any Securityholder or any Financial Party and which continues unremedied for a period of 60 30 days after the date on which earlier of (i) giving of written notice of such failure, requiring the same to be remedied, shall have been given failure (A) to the Servicer by either Trustee or the Trustee, Agent or (B) to the Servicer and the to either Trustee by the Holders holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; Outstanding Amount of the Controlling Class or (ii) after a Responsible Officer of the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; orobtains actual knowledge of such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement other Basic Document shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders and which continues to be incorrect in any material respect for a period when made, and if the consequences of 60 such representation, warranty or certification being incorrect shall be susceptible of remedy in all material respects, such consequences shall not be remedied in all material respects within 30 days after the date on which written notice of Servicer first becomes aware or is advised that such failurerepresentation, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, warranty or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; orcertification was incorrect in a material respect;
(d) the Servicer shall (a) become insolvent, (b) fail to pay its debts generally as they become due, (c) voluntarily seek, consent to, or acquiesce in the benefit or benefits occurrence of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% of the Aggregate Investor Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received an Insolvency Event with respect to the Receivables, Servicer; and
(e) the failure of NFC and its affiliates to deliver the financial statements and related financial information as provided in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing Section 5.02(c) of the Receivables in the manner Note Purchase Agreement and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require a written notice is received by the Servicer to disclose to from the Successor Agent stating that such failure constitutes a “Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor ServicerDefault.”
Appears in 1 contract
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuingcontinuing after the Certificate Trust Termination Date:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Indenture Trustee pursuant to Section 4.5 make such payment, transfer or deposit or to make a give notice to the Indenture Trustee as to any required drawing or payment under any Letter of Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement Agreement, the Indenture or any Indenture Supplement; or;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agreement, which has a material adverse effect on the Certificateholders, Noteholders of any Series then outstanding (without regard to the amount of any Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the TrusteeIndenture Trustee or the Transferor, or to the Servicer Servicer, the Transferor and the Indenture Trustee by the Holders of Investor Certificates evidencing Undivided Interests Notes aggregating not less more than 2550% of the Aggregate Investor Amount; outstanding principal amount of any Series adversely affected thereby, and which continues to materially adversely affect the rights of the Noteholders of any Series then outstanding (without regard to the amount of any Enhancement) or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.75.7; orprovided, however, that any such failure that relates to any particular Receivable or group of Receivables shall not constitute a Servicer Default if the Servicer has made a deposit in the Collection Account with respect to such failure in accordance with Section 3.3;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders Noteholders of any Series then outstanding (without regard to the amount of any Enhancement) and which continues to be incorrect in any material respect and which continues to affect materially and adversely the rights of the Noteholders of any Series (without regard to the amount of any Enhancement) for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the TrusteeIndenture Trustee or the Transferor, or to the Servicer Servicer, the Transferor and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less more than 2550% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control outstanding principal amount of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuityany Series adversely affected thereby; or
(d) the Servicer shall (a) become insolventconsent to the appointment of a conservator or receiver or liquidator in any insolvency, (b) fail readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable insolvency or reorganization statute, consent to, or acquiesce in make an assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filingobligations; then, so long as such Servicer Default shall not have been remedied, either the Indenture Trustee, the Transferor or the Holders of Investor Certificates evidencing Undivided Interests Notes aggregating not less more than 5150% of the Aggregate Investor Invested Amount, by notice then given in writing to the Servicer (and to the Indenture Trustee and the Transferor if given by the Investor CertificateholdersNoteholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof and appoint a new Servicer (other than its a "Service Transfer"). The rights and interest, if any, as Holder interests of the Exchangeable Certificate under this Agreement)Transferor Interest will not be affected by any Service Transfer. The Indenture Trustee, upon giving or receiving a Termination Notice shall immediately notify the Rating Agencies and any Enhancement Provider of such notice. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.27.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; , and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Servicer agrees to take all reasonable actions to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsRecoveries. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 7.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in Section 7.1(a) for a period of 10 Business Days after the applicable grace period or a delay in or failure of performance referred to in Section 7.1(b) or (c) for a period of 60 Business Days after the applicable grace period shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, any Enhancement Provider, the Transferor and the Holders of Notes with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations. The Servicer shall, on shall immediately notify a Responsible Officer of the date Indenture Trustee in writing of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor ServicerServicer Default.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Fnanb Credit Card Master Trust)
Servicer Defaults. If any one Each of the following events (shall constitute a "“Servicer Default") shall occur and be continuing”:
(a) any failure by the Servicer to deliver to the Indenture Trustee for deposit in any of the Designated Accounts or the Lockbox Accounts any required payment or to direct the Indenture Trustee to make any paymentrequired distributions therefrom, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 or to make which failure continues unremedied for a drawing under any Letter period of Credit on or before the date occurring five three Business Days after the date such payment, transfer, deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; orwhen due;
(b) failure on the part of the Transferor or the Servicer to duly to observe or perform in any material respect any other of their respective covenants or agreements of the Servicer set forth in the Purchase Agreement, this Agreement or any Supplement of the other Basic Documents which has a material adverse effect on failure (i) materially and adversely affects the Certificateholdersrights of the Beneficiaries, which and (ii) continues unremedied for a period of 60 30 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer Transferor or the Servicer, as applicable, by the TrusteeIndenture Trustee (acting at the direction of the Control Party), or to the Servicer Transferor or the Servicer, as applicable, and the to either Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; orControl Party;
(c) any representationthe entry of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, warranty receiver, liquidator or certification made by similar official for the Servicer in this AgreementTransferor or the Servicer, any Supplement or in any certificate delivered pursuant to this Agreement bankruptcy, insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding up or liquidation of their respective affairs, and the continuance of any Supplement shall prove to have been incorrect when made, which has a material adverse such decree or order unstayed and in effect on the rights of the Certificateholders and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; ormore consecutive days;
(d) the consent by the Transferor or the Servicer to the appointment of a conservator or receiver, liquidator or similar official in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and liabilities, or similar proceedings of or relating to the Transferor or the Servicer or of or relating to substantially all of their respective property; or the Transferor or the Servicer shall (a) become insolvent, (b) fail admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(ce) voluntarily seekthe failure to distribute a Servicer’s Certificate pursuant to the terms of Section 3.10 or Section 5.08 within three Business Days after the related Determination Date provided, consent to, however that a Servicer Default will not occur if such failure is cured within an additional two business days such exception to be limited to one time per 12 months during the life of this Agreement;
(f) any assignment of rights or acquiesce delegation of duties by the Servicer in violation of this Agreement;
(g) any material adverse change in the benefit properties, business or benefits condition (financial or otherwise) of the Servicer or the existence of any Debtor Relief Lawother condition which, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Lawin each case, other than as a creditor or claimant, andconstitutes, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% reasonable discretion of the Aggregate Investor AmountControl Party constitutes, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all material impairment of the rights and Servicer’s ability to perform its obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement; provided that a change in the value of any Loan or Receivable shall not result in a Servicer Default under this subsection (g). After receipt ;
(h) the first to occur of (i) an event of default by the Servicer or its Affiliate, as applicable, in the performance of any term, provision or condition of any indebtedness for borrowed money in excess of $5,000,000, which event of default other than a payment default is neither waived pursuant to an unconditional waiver nor cured within 60 days (inclusive of any cure period or other period of grace) of the date upon which such event of default occurs or (ii) the acceleration of any such indebtedness as a result of an event of default, such that any indebtedness due thereunder is due prior to its stated maturity; or any such indebtedness shall be declared to be due and payable prior to the date of maturity thereof or shall be unpaid on its maturity date;
(i) a final judgment or judgments for the payment of money in excess of $5,000,000 in the aggregate against the Servicer and the same shall not be discharged (or provisions made for such discharge) or bonded, or a stay of execution thereof shall not be procured, within sixty days from the date of entry thereof and the Servicer shall not, within said period of sixty days, or within such longer period during which execution of the same shall have been stayed or bonded, appeal therefrom and cause the execution thereof to be stayed during such appeal;
(j) the rolling three (3) month average of the Delinquency Ratio - Receivables exceeds 8.25%;
(k) the rolling three (3) month average of the Delinquency Ratio - Equipment Loans exceeds 3.00%;
(l) the rolling three (3) month average of the Dilution Ratio - Receivables exceeds 16.5%;
(m) the rolling three (3) month average of the Default Ratio - Receivables exceeds 6.00%;
(n) the rolling three (3) month average of the Default Ratio - Equipment Loans exceeds 1.50%;
(o) the Days Sales Outstanding - Receivables exceeds 110 days;
(p) if ALS or an Affiliate thereof is the Servicer, the breach by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power one or both of the Servicer under this Agreement shall pass to and be vested covenants set forth in a Successor ServicerSection 3.07(i); andor
(q) the breach, without limitationin any material respect, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, of any representation or which have been deposited warranty made by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing this Agreement or any of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor ServicerBasic Documents.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Alliance Laundry Systems LLC)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (other than with respect to any Credit Balances) or to give instructions or notice to the Trustee pursuant to Section 4.5 Article IV or to instruct the Trustee to make a drawing any required drawing, withdrawal, or payment under any Letter of Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; orAgreement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement (other than those set forth in subsections 3.03(g), (i) and (j)), which has a material adverse effect on the Certificateholders, Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, stating that such notice is a "Notice of Servicer Default" hereunder and requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Certificateholders Ownership Interests of any Series adversely affected thereby and continues to materially adversely affect such Investor AmountCertificateholders for such period; or the Servicer shall delegate or assign its duties under this Agreement, except as permitted by Section 8.78.02 or 8.07; orprovided, however, that failure on the part of the Servicer duly to observe or perform in any respect any covenants or agreements of the Servicer set forth in subsections 3.03(g), (i) or (j) of this Agreement, which has a material adverse effect on the Investor Certificateholders of any Series (which determination shall be made without regard to the availability of any Credit Enhancement or similar credit support device) and which continues after, and notwithstanding, the removal by the Servicer of the related Receivable in accordance with the last paragraph of Section 3.03, shall be a Servicer Default unless the Servicer shall have, within 60 days after the date (following such removal) on which written notice of such continuing material adverse effect shall have been given to the Servicer by the Trustee or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Certificateholders Ownership Interests of any Series adversely affected thereby, remedied such failure;
(c) any representation, warranty or certification made by the Servicer in this Agreement, Agreement or any Supplement or in any certificate (including without limitation any Monthly Servicer Report) delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights Investor Certificateholders of any Series (which determination shall be made without regard to the Certificateholders availability of any Credit Enhancement or similar credit support device) and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control Certificateholders Ownership Interests of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuityany Series adversely affected thereby; or
(d) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or other similar law for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall (a) become insolventconsent to the appointment of a conservator or receiver or liquidator in any insolvency, (b) fail readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable insolvency or reorganization statute, consent to, or acquiesce in make an assignment for the benefit of its creditors or benefits voluntarily suspend payment of its obligations or take any corporate action in furtherance of any Debtor Relief Law, or (d) become a party to (or be made of the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filingforegoing; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate Investor AmountCertificateholders Ownership Interests, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer (and which termination shall apply to each person acting as Servicer if more than one Person is acting as Servicer) under this Agreement and in and to the Receivables and Receivables. Any determination that an inaccuracy or other event, which with notice and/or the proceeds thereof (other than its rights and interestpassage of time would constitute a Servicer Default, if any, as Holder would have a material adverse effect on Holders of one or more Series of Certificates shall be made without regard to the Exchangeable Certificate under this Agreement)availability of any Credit Enhancement or similar credit support device with respect to such Series. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.210.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in a the Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsrights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables Trust Assets provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account orAccount, the Principal Account, and any Series Account, or which shall thereafter be received with respect to the ReceivablesTrust Assets, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsRecoveries allocable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Receivables Trust Assets to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables Trust Assets in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 10.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Loans and the related Receivables; provided, however, that such software shall be used by the Successor Servicer solely for the purposes of servicing the Trust Assets. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, obligations under the Letter of Credit Enhancement with respect to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 Business Days, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Credit Enhancement Provider, the Transferor and the Holders of Investor Certificates with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (A I Receivables Corp)
Servicer Defaults. If any one of the following events (each, a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice credit to the Trustee pursuant to Section 4.5 or to make a drawing Collection Account any amount required under any Letter of Credit on or before the date occurring five Business Days after the date such payment, transfer, deposit or drawing or such instruction or notice is required this Agreement to be made so deposited or given, as the case may be, under the terms of this Agreement or any Supplement; or
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholderscredited, which failure continues unremedied for a period of 60 days two Business Days after discovery by the Servicer or receipt by the Servicer of written notice of such failure from the Issuer, the Indenture Trustee or the Insurer or after discovery of such failure by an officer of the Servicer;
(b) the Insurer, the Indenture Trustee or the Issuer shall not have received a report in accordance with Section 3.08 by the Servicer Report Date with respect to which such report is due and which shall continue unremedied for a period of one day after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; orgiven;
(c) any representation, warranty failure on the part of the Seller or certification made by the Servicer duly to observe or to perform any other covenants or agreements of the Seller or the Servicer set forth in this Agreement, any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when madeother Basic Document, which has a material adverse effect on failure shall (i) materially and adversely affect the rights of the Certificateholders Noteholders, the Insurer, the Issuer, the Owner Trustee or the Indenture Trustee and which continues to be incorrect in any material respect (ii) continue unremedied for a period of 60 30 days after the date on which the Seller, the Custodian or the Servicer shall have knowledge of such failure or written notice of such failure, requiring the same to be remedied, shall have been given given
(A) to the Servicer Seller or the Servicer, as the case may be, by the TrusteeInsurer, the Issuer, the Owner Trustee or the Indenture Trustee or (B) to the Servicer Seller or the Servicer, as the case may be, and to the Issuer and the Indenture Trustee by Noteholders, acting together as a single class, evidencing in the Holders of Investor Certificates evidencing Undivided Interests aggregating aggregate not less than 25% of the Aggregate Investor AmountOutstanding Principal Amount of the Notes or, or if such failure cannot be cured within such 60-day period owing to causes beyond so long as no Insurer Default has occurred and is continuing, by the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; orInsurer;
(d) the entry of a decree or order for relief by a court or regulatory authority having jurisdiction in respect of the Servicer shall or the Seller in an involuntary case under the federal bankruptcy laws, as now or hereafter in effect, or another present or future, federal or state, bankruptcy, insolvency or similar law, or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Servicer or the Seller or of any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Servicer or the Seller and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the commencement of an involuntary case under the federal bankruptcy laws, as now or hereinafter in effect, or another present or future federal or state bankruptcy, insolvency or similar law and such case is not dismissed within 60 days;
(ae) become insolventthe commencement by the Servicer or the Seller of a voluntary case under the federal bankruptcy laws, (b) fail as now or hereafter in effect, or any other present or future, federal or state, bankruptcy, insolvency or similar law, or the consent by the Servicer or the Seller to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Servicer or the Seller or of any substantial part of its property or the making by the Servicer or the Seller of an assignment for the benefit of creditors or the failure by the Servicer or the Seller generally to pay its debts generally as they such debts become duedue or the taking of corporate action by the Servicer or the Seller in furtherance of any of the foregoing;
(f) any merger or consolidation or sale of assets of the Servicer in violation of the covenant set forth in Section 6.02 hereof;
(g) the Servicer shall have failed in the reasonable opinion of the Insurer to service the Contracts in accordance with the Servicing Standards and such failure shall have continued unremedied for 30 days after written notice of such failure shall have been delivered to the Servicer by the Insurer;
(h) any representation, warranty or statement of the Servicer or the Seller made in this Agreement or the other Basic Documents or any certificate, report or other writing delivered pursuant hereto or thereto shall prove to be incorrect in any material respect as of the time when the same shall have been made (c) voluntarily seekexcluding, consent tohowever, any representation or warranty made in this Agreement or any other Basic Document as to which Section 2.03 or 3.06 shall be applicable so long as the Servicer or the Seller shall be in compliance with Section 2.03 or 3.06, as the case may be), and the incorrectness of such representation, warranty or statement has a material adverse effect on the Noteholders or the Insurer and, within 30 days after written notice thereof shall have been given to the Servicer or the Seller by the Indenture Trustee or the Issuer or by Noteholders, acting together as a single Class, evidencing in the aggregate not less than 25% of the Outstanding Principal Amount of the Notes, or acquiesce so long as no Insurer Default has occurred, by the Insurer, the circumstance or condition in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured;
(i) the subservicing agreement between World Omni Financial Corp. and the Servicer shall for any reason cease to be in full force and a successor Subservicer acceptable to the Insurer shall not be appointed within 60 days, or if any party thereto denies that it has any further liability thereunder or gives notice to such effect;
(j) the Indenture Trustee shall, for any reason, fail to have a valid perfected first priority security interest in Contracts pledged by the Issuer to the Indenture Trustee the outstanding aggregate Principal Balance of which exceeds 5.00% of the Pool Balance;
(k) unless authorized under Section 5.02, the Seller shall enter into any transaction described in Section 5.02 regardless of the surviving entity; or
(l) an Event of Default as defined in the benefit or benefits of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, Insurance Agreement; then and in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; theneach and every case, so long as such Servicer Default shall not have been remedied, either (i) if no Insurer Default has occurred and is continuing, the TrusteeInsurer or (ii) if an Insurer Default has occurred and is continuing, or the Holders Indenture Trustee acting at the direction of Investor Certificates the Noteholders evidencing Undivided Interests aggregating not less than 5125% of the Aggregate Investor Amountoutstanding amount of the Notes, acting together as a single Class, by notice then given in writing to the Servicer (and to the Insurer, the Indenture Trustee and the Issuer if given by the Investor CertificateholdersNoteholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After Upon such termination, termination of the Servicer as custodian, if the Servicer is acting as such, can be made pursuant to Section 2.08. On or after the receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2written notice of termination, all authority and power of the Servicer under this Agreement shall Agreement, whether with respect to the Notes, the Contracts or otherwise, shall, without further action, pass to and be vested in a the Indenture Trustee or such Successor Servicer; Servicer as may be appointed under Section 7.02 and, without limitation, the Indenture Trustee is and the Issuer are hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of servicing rightsthe Contracts and related documents, or otherwise. The Servicer agrees to shall cooperate with the Trustee Indenture Trustee, the Insurer and such Successor Servicer the Issuer in effecting the termination transfer of the responsibilities and rights of the Servicer under this Agreement (whether due to conduct servicing hereundertermination, includingresignation or otherwise), without limitation, including the transfer to the Indenture Trustee or such Successor Servicer Servicer, as applicable, for administration by it of all authority of cash amounts that (i) shall at the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer time be held by the Servicer for depositdeposit in, or which shall have been deposited by the ServicerServicer in, in the Collection Account, the Finance Charge Account or, the Principal Account, or which (ii) shall thereafter be received by it with respect to the Receivables, and in assisting any Contract. The predecessor Servicer shall pay all costs of the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer associated with its electronic records relating transition to the Receivables to the role of Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer (whether due to the Successor Servicer all other recordstermination, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicerresignation or otherwise).
Appears in 1 contract
Samples: Sale and Servicing Agreement (Auto Nations Receivables Corp)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 Article IV or to instruct the Trustee to make a drawing any required drawing, withdrawal, or payment under any Letter of Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; orAgreement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agreement, which has a material adverse effect on the Certificateholders, Investor Certificateholders of any Series and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, provided that the Trustee has actual knowledge of such failure, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Invested Amount of any Series materially adversely affected thereby and continues to materially adversely affect such Investor AmountCertificateholders for such period; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; or;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights Investor Certificateholders of the Certificateholders any Series and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the TrusteeTrustee provided that the Trustee has actual knowledge of such failure, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Invested Amount of any Series materially adversely affected thereby and continues to materially adversely affect such Investor Amount, or if Certificateholders for such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuityperiod; or
(d) the Servicer shall (a) become insolvent, (b) fail to pay its debts generally as they become due, (c) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% of the Aggregate Investor Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Servicer Defaults. If The happening of any one or more of the following events (shall constitute a "Servicer Default") shall occur and be continuingDefault hereunder:
(a) any Any failure by the Servicer Servicers to make any payment, deposit, advance or transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit on or before the date occurring five Business Days after the date such payment, transfer, deposit or drawing or such instruction or notice is funds required to be made paid, deposited, advanced or given, as the case may be, transferred under the terms of this Agreement Agreement, and such failure continues unremedied for five (5) Business Days after discovery by the Servicers of such failure or any Supplement; orreceipt by the Servicers of notice of such failure;
(b) failure Failure on the part of the Servicer Servicers duly to observe or perform in any material respect any other of the covenants or agreements of the Servicer set forth contained in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, Supervisory Servicing Agreement which continues unremedied for a period of 60 thirty (30) days after the date on which earlier to occur of the Servicers obtaining actual knowledge of such failure or the Servicers' receipt of written notice of such failurefailure or breach as the case may be; provided, requiring however, if such failure shall be of a nature that it cannot be cured within thirty (30) days, such failure shall not constitute a Servicer Default hereunder if within such 30-day period the same Servicers give notice to the Trustee and the Supervisory Servicer of the corrective action it proposes to take, which corrective action is agreed in writing by the Trustee to be remediedsatisfactory and the Servicers shall thereafter pursue such corrective action diligently until such default is cured but in no event longer than ninety (90) days;
(c) A decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been given entered against a Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of ninety (90) days;
(d) A Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to such Servicer by or of or relating to all or substantially all of its property;
(e) A Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the Trusteebenefit of its creditors or voluntarily suspend payments of its obligations;
(f) A Servicer shall cease to be an Eligible Servicer;
(g) A material adverse change occurs in the financial condition of a Servicer, or to which change materially impairs the ability of the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or the Servicer shall delegate to perform its duties obligations under this Agreement, except as permitted by Section 8.7; or
(ch) any representation, Any representation or warranty or certification made by the a Servicer in this Agreement, any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove Transaction Document proves to have been incorrect in any material respect when made, which has a material adverse effect on the rights of the Certificateholders Noteholders and which continues to have a material adverse effect or be incorrect in any material respect for a period of 60 thirty (30) days after the date on which written notice of such failureinaccuracy, requiring the same it to be remedied, shall have has been given to the Servicer Servicers by the Trustee, the Supervisory Servicer or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amountany Noteholder; provided, or however, if such failure inaccuracy is of a nature that it cannot be cured remedied within such 6030-day period owing and the Servicer gives notices to causes beyond the control Trustee and the Supervisory Servicer of Servicerthe corrective action it proposes to take, if Servicer shall fail which corrective action is agreed in writing by the Trustee to proceed promptly to cure the same be satisfactory and thereafter prosecute the curing of such failure with diligence and continuity; or
(d) the Servicer shall thereafter pursue such corrective action diligently until such default is cured but in no event longer than ninety (a90) become insolvent, (b) fail to pay its debts generally as they become due, (c) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% of the Aggregate Investor Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on from the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicernotice.
Appears in 1 contract
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuingcontinuing after the Certificate Trust Termination Date:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Indenture Trustee pursuant to Section 4.5 make such payment, transfer or deposit or to make a give notice to the Indenture Trustee as to any required drawing or payment under any Letter of Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement Agreement, the Indenture or any Indenture Supplement; or;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agreement, which has a material adverse effect on the Certificateholders, Noteholders of any Series then outstanding (without regard to the amount of any Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the TrusteeIndenture Trustee or the Transferor, or to the Servicer Servicer, the Transferor and the Indenture Trustee by the Holders of Investor Certificates evidencing Undivided Interests Notes aggregating not less more than 25% of the Aggregate Investor Amount; outstanding principal amount of any Series adversely affected thereby, and which continues to materially adversely affect the rights of the Noteholders of any Series then outstanding (without regard to the amount of any Enhancement) or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.75.7; orprovided, however, that any such failure that relates to any particular Receivable or group of Receivables shall not constitute a Servicer Default if the Servicer has made a deposit in the Collection Account with respect to such failure in accordance with Section 3.3;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders Noteholders of any Series then outstanding (without regard to the amount of any Enhancement) and which continues to be incorrect in any material respect and which continues to affect materially and adversely the rights of the Noteholders of any Series (without regard to the amount of any Enhancement) for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the TrusteeIndenture Trustee or the Transferor, or to the Servicer Servicer, the Transferor and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less more than 2550% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control outstanding principal amount of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuityany Series adversely affected thereby; or
(d) the Servicer shall (a) become insolventconsent to the appointment of a conservator or receiver or liquidator in any insolvency, (b) fail readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable insolvency or reorganization statute, consent to, or acquiesce in make an assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filingobligations; then, so long as such Servicer Default shall not have been remedied, either the Indenture Trustee, the Transferor or the Holders of Investor Certificates evidencing Undivided Interests Notes aggregating not less more than 5150% of the Aggregate Investor Invested Amount, by notice then given in writing to the Servicer (and to the Indenture Trustee and the Transferor if given by the Investor CertificateholdersNoteholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof and appoint a new Servicer (other than its a "Service Transfer"). The rights and interest, if any, as Holder interests of the Exchangeable Certificate under this Agreement)Transferor Interest will not be affected by any Service Transfer. The Indenture Trustee, upon giving or receiving a Termination Notice shall immediately notify the Rating Agencies and any Enhancement Provider of such notice. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.27.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; , and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Servicer agrees to take all reasonable actions to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsRecoveries. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 7.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest; provided, however, that no such agreement shall prohibit (i) disclosure of any and all information that is or becomes publicly known, or information obtained by such Successor Servicer from sources other than the other parties hereto, (ii) disclosure of any and all information (A) if required to do so by any applicable law, rule or regulation, (B) to any government agency or regulatory body having or claiming authority to regulate or oversee any aspects of such Successor Servicer's business, (C) pursuant to any subpoena, civil investigative demand or similar demand or request of any court, regulatory authority, arbitrator or arbitration to which the Successor Servicer or any Affiliate or an officer, director, employer or shareholder thereof is a party or (D) to any Affiliate, independent or internal auditor, agent, employee or attorney of such Successor Servicer having a need to know the same, provided that such Successor Servicer advises such recipient of the confidential nature of such disclosed information, or (iii) any other disclosure authorized by the Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in Section 7.1(a) for a period of 10 Business Days after the applicable grace period or a delay in or failure of performance referred to in Section 7.1(b) or (c) for a period of 60 Business Days after the applicable grace period shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, any Enhancement Provider, the Transferor and the Holders of Notes with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations. The Servicer shall, on shall immediately notify a Responsible Officer of the date Indenture Trustee in writing of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor ServicerServicer Default.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Dc Funding International Inc)
Servicer Defaults. If any one of the following events (a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit such payment, transfer or deposit on or before the date occurring five (5) Business Days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement Agreement, the Indenture or any Indenture Supplement; or;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement, the Indenture, any Indenture Supplement, the Affinity Card Agreement or any Supplement which has a material adverse effect on the Certificateholders, Facilities Management Agreement and which continues unremedied for a period of 60 sixty (60) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2510% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes Outstanding (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Notes Outstanding of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Section 8.7; orSECTIONS 6.02 and 6.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders an Adverse Effect and which Adverse Effect continues to be incorrect in any material respect for a period of 60 sixty (60) days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2510% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes Outstanding (or, with respect to any such representation, warranty or if certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Notes Outstanding of all Series to which such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicerrepresentation, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuitywarranty or certification relates); or
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar Proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or an action seeking a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar Proceedings, or the winding-up or liquidation of its affairs, shall have been commenced against the Servicer and such action shall have remained undischarged or unstayed for a period of sixty (a60) become insolvent, (b) fail days or an order or decree providing for such relief shall have been entered; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable bankruptcy, consent toinsolvency or reorganization statute, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, andits obligations; then, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenof any Servicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 51% a majority of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes Outstanding, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "Termination NoticeTERMINATION NOTICE"), may terminate all but not less than all of the rights and obligations of the Servicer as Servicer under this Agreement Agreement, the Indenture and each Indenture Supplement; PROVIDED, HOWEVER, if within sixty (60) days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with SECTION 8.02(c) to act as a Successor Servicer and receives an Officer's Certificate of the Servicer to the Receivables and effect that the proceeds thereof (other than Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall grant a right of first refusal to the Transferor which would permit the Transferor at its rights and interest, if any, as Holder option to purchase the Notes on the Distribution Date in the next calendar month. The purchase price for the Notes purchased pursuant to the preceding paragraph shall be equal to the sum of the Exchangeable Certificate under this Agreement)amounts specified therefor with respect to each outstanding Series in the related Indenture Supplement. The Transferor shall notify the Indenture Trustee prior to the Record Date for the Distribution Date of the purchase if it is exercising such right of first refusal. If the Transferor exercises such right of first refusal, the Transferor shall deposit the purchase price into the Collection Account not later than 11:00 a.m., New York City time, on the Transfer Date preceding such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Noteholders in accordance with the terms of the Indenture and each Indenture Supplement. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 10.2SECTION 8.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a Successor Servicer"SERVICE TRANSFER"); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsServicer. The Servicer shall promptly within twenty (20) Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. The predecessor Servicer shall be responsible for all expenses incurred in transferring the servicing duties to the Successor Servicer. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of ten (10) Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of sixty (60) Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer shallfrom using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, on the date Issuer, each Transferor and any Series Enhancer with an Officer's Certificate giving prompt notice of any servicing transfersuch failure or delay by it, transfer all together with a description of its rights and efforts so to perform its obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Compucredit Corp)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit such payment, transfer or deposit on or before the date occurring five (5) Business Days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement Agreement, the Indenture or any Indenture Supplement; or;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, an Adverse Effect and which continues unremedied for a period of 60 sixty (60) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2510% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Section 8.7; orSections 5.02 and 5.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect an Adverse Effect on the rights of the Certificateholders Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which Adverse Effect continues to be incorrect in any material respect for a period of 60 sixty (60) days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2510% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or if certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicerrepresentation, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; orwarranty or certification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (a60) become insolvent, (b) fail days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(ce) voluntarily seek, consent to, or acquiesce any other Servicer Default described in the benefit or benefits of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, andrelated Indenture Supplement. Then, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenof any Servicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "Termination Notice"), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer under this Agreement Agreement; provided, however, if within sixty (60) days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with subsection 7.02(c) to act as a Successor Servicer and in and receives an Officer's Certificate of the Servicer to the Receivables and effect that the proceeds thereof (other than Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall grant a right of first refusal to the Transferor which would permit the Transferor at its rights and interest, if any, as Holder option to acquire the Noteholders' Interest on the Payment Date in the next calendar month. The price for the Noteholders' Interest shall be equal to the sum of the Exchangeable Certificate under this Agreement)amounts specified therefor with respect to each outstanding Series in the related Indenture Supplement. The Transferor shall notify the Indenture Trustee prior to the Record Date for the Payment Date of the acquisition if it is exercising such right of first refusal. If the Transferor exercises such right of first refusal, the Transferor shall deposit the price into the Collection Account not later than 1:00 p.m., New York City time, on such Payment Date in immediately available funds. The price shall be allocated and distributed to Noteholders in accordance with the terms of the Indenture and each Indenture Supplement. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 10.27.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a Successor Servicer"Servicing Transfer"); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsServicing Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsServicer. The Servicer shall promptly within twenty (20) Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of ten (10) Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of sixty (60) Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer shallfrom using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, on the date Owner Trustee, each Transferor and any Series Enhancer with an Officer's Certificate giving prompt notice of any servicing transfersuch failure or delay by it, transfer all together with a description of its rights and efforts so to perform its obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Advanta Business Recievables Corp)
Servicer Defaults. If any one of the following events (a "“Servicer Default"”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; or;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2510% of the Aggregate aggregate unpaid principal amount of all Investor AmountCertificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Section 8.7; orSections 8.02 and 8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement, Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2510% of the Aggregate aggregate unpaid principal amount of all Investor AmountCertificates (or, with respect to any such representation, warranty or if certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicerrepresentation, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuitywarranty or certification relates); or
(d) the Servicer shall (a) become insolventconsent to the appointment of a conservator or receiver or liquidator in any insolvency, (b) fail readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable insolvency or reorganization statute, consent to, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, andits obligations; then, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenof any Servicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate aggregate unpaid principal amount of all Investor AmountCertificates, by notice then given in writing to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a "“Termination Notice"”), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interestthereof; provided, however, if any, within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as Holder a Successor Servicer and receives an Officer’s Certificate of the Exchangeable Certificate under this Agreement)Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders’ Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Trustee pursuant to Section 10.210.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a Successor Servicer“Service Transfer”); and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-attorney- in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsServicer. The Servicer shall promptly within 20 Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer shallfrom using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, on the date Sellers, any Series Enhancer and the Investor Certificateholders with an Officer’s Certificate giving prompt notice of any servicing transfersuch failure or delay by it, transfer all together with a description of its rights and efforts so to perform its obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Pooling and Servicing Agreement
Servicer Defaults. If any one of the following events ----------------- (a "Servicer Default") shall occur and be continuing:: ----------------
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement the Indenture or any Indenture Supplement; or;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, an Adverse Effect and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2510% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Section 8.7; orSections 5.02 and 5.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect an Adverse Effect on the rights of the Certificateholders Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which Adverse Effect continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2510% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or if certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicerrepresentation, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuitywarranty or certification relates); or
(d) the Servicer shall (a) become insolventconsent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, (b) fail readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable bankruptcy, consent toinsolvency or reorganization statute, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, andits obligations; Then, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenof any Servicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "Termination ----------- Notice"), may terminate all of but not less than all the rights and obligations of ------ the Servicer as Servicer under this Agreement Agreement; provided, however, if within 60 days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with subsection 7.02(c) to act as a Successor Servicer and in and receives an Officer's Certificate of the Servicer to the Receivables and effect that the proceeds thereof (other than Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall grant a right of first refusal to the Transferor which would permit the Transferor at its rights and interest, if any, as Holder option to acquire the Noteholders' Collateral on the Distribution Date in the next calendar month. The price for the Noteholders' Collateral shall be equal to the sum of the Exchangeable Certificate under this Agreement)amounts specified therefor with respect to each outstanding Series in the related Indenture Supplement. The Transferor shall notify the Indenture Trustee prior to the Record Date for the Distribution Date of the acquisition if it is exercising such right of first refusal. If the Transferor exercises such right of first refusal, the Transferor shall deposit the price into the Collection Account not later than 1:00 P.M., New York City time, on such Distribution Date in immediately available funds. The price shall be allocated and distributed to Noteholders in accordance with the terms of the Indenture and each Indenture Supplement. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 10.27.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a Successor Servicer"Service Transfer"); and, ---------------- without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsServicer. The Servicer shall promptly within 20 Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer shallfrom using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, on the date Owner Trustee, each Transferor and any Series Enhancer with an Officer's Certificate giving prompt notice of any servicing transfersuch failure or delay by it, transfer all together with a description of its rights and efforts so to perform its obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Household Credit Card Master Note Trust I)
Servicer Defaults. If any one of the following events (a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement Agreement, the Indenture or any Indenture Supplement; or;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, an Adverse Effect and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2510% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Section 8.7; orSections 5.02 and 5.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect an Adverse Effect on the rights of the Certificateholders Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which Adverse Effect continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2510% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or if certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicerrepresentation, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuitywarranty or certification relates); or
(d) the Servicer shall (a) become insolventconsent to the appointment of a bankruptcy trustee, (b) fail conservator, receiver, liquidator or similar official in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee, conservator, receiver, liquidator or similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable bankruptcy, consent toinsolvency or reorganization statute, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, andits obligations; then, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenof any Servicer Default, so long as such the Servicer Default shall not have been remedied, either any of the Indenture Trustee, any Controlling Entity or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate Investor Amountaggregate unpaid principal amount of all Outstanding Notes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "Termination NoticeTERMINATION NOTICE"), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer under this Agreement Agreement; provided, however, if within 60 days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with subsection 7.02(c) to act as a Successor Servicer and in and receives an Officer's Certificate of the Servicer to the Receivables and effect that the proceeds thereof (other than Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall grant a right of first refusal to the Transferor which would permit the Transferor at its rights and interest, if any, as Holder option to acquire the Notes on the Distribution Date in the next calendar month. The price for the Notes shall be equal to the sum of the Exchangeable Certificate under this Agreement)amounts specified therefor with respect to each Outstanding Series in the related Indenture Supplement. The Transferor shall notify the Indenture Trustee prior to the Record Date for the Distribution Date of the acquisition if it is exercising such right of first refusal. If the Transferor exercises such right of first refusal, the Transferor shall deposit the price into the Collection Account not later than 1:00 p.m., New York City time, on such Distribution Date in immediately available funds. The price shall be allocated and distributed to Noteholders in accordance with the terms of the Indenture and each Indenture Supplement. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 10.27.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a Successor Servicer"SERVICE TRANSFER"); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsServicer. The Servicer shall promptly within 20 Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. The Servicer shallshall pay to the Indenture Trustee and any Successor Servicer the reasonable transition expenses incurred by such person and the agents in connection with any transition of Servicing. Notwithstanding the foregoing, on a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the date applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, Owner Trustee, each Transferor and any servicing transferSeries Enhancer with an Officer's Certificate giving prompt notice of such failure or delay by it, transfer all together with a description of its rights and efforts so to perform its obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Household Consumer Loan Corp Ii)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuingoccur:
(a) any failure by Servicer to endorse and deposit on a daily basis the Servicer contents of the Lockbox Account pursuant to Section 4.02, to direct the Lockbox Account Bank to make deposits in the Investment Account at the times specified herein, to make any paymentServicer Advance in accordance with Section 3.03, transfer to make any deposits to the Investment Account of Collections received or deposit or required to be made by Servicer at the times specified herein, to give instructions or notice to Trustee to make a required drawing under the Trustee pursuant to Section 4.5 Letter of Credit or to make a drawing under any Letter of Credit Cash Collateral Withdrawal or to make the payments and deposits on or before the date occurring five Business Days after the date such payment, transfer, deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; ora Deposit Date in accordance with Section 4.08(b);
(b) failure on the part of Servicer to deliver the Monthly Statement in accordance with Section 3.09;
(c) failure on the part of Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the CertificateholdersAgreement, which continues unremedied for a period of 60 30 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor AmountMajority Certificateholders or Bond Insurer; or the Servicer shall delegate or attempt to delegate its duties under this Agreement, except as permitted by Section 8.7; or;
(cd) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders or Bond Insurer or on the ability of Servicer to perform its obligations hereunder and which continues to be incorrect in any material respect for a period of 60 30 days after the date on which written notice of such failure,
(e) Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, requiring readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to Servicer or of or relating to all or substantially all of its property; or a decree or order of a court or agency or supervisory authority having jurisdiction in the same to be remediedpremises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been given to the Servicer by the Trustee, or to the entered against Servicer and the Trustee by the Holders such decree or order shall have remained in force undischarged or unstayed for a period of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, 60 days; or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; or
(d) the Servicer shall (a) become insolvent, (b) fail admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable insolvency or reorganization statute, consent to, or acquiesce in make any assignment for the benefit of creditors or benefits voluntarily suspend payment of its obligations; a petition is filed against Servicer seeking relief under the bankruptcy, arrangement, reorganization or other debtor relief laws of the United States or any Debtor Relief Lawstate or other competent jurisdiction, and such petition, order, judgment or decree shall have remained in force, undischarged or unstayed for a period of sixty (d60) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filingentry;
(f) in the case of Rockford while acting as Servicer, any of the events referred to in Section 2.02(j), (k) or (l) of the Purchase Agreement shall have occurred; or
(g) a Trigger Event shall have occurred; provided, however, that if, after the Initial Cut-Off Date, Servicer shall merge, consolidate or effect any other corporate structural change, including without limitation any sale of the majority of its voting securities or transfer of ownership, Bond Insurer shall have the right, in its sole discretion, to modify the Servicer Defaults then, so long as such Servicer Default shall not have been remediedTrustee may or, either at the Trustee, or the Holders written direction of Investor Certificates evidencing Undivided Interests aggregating not less than 51% of the Aggregate Investor AmountBond Insurer, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may shall terminate all of the rights and obligations of the Servicer as Servicer under this Agreement "Servicer" hereunder and in and to the Receivables Trust Assets and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement)thereof. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall shall, with the prior written consent of Bond Insurer, pass to and be vested in a Successor the Back-up Servicer; and, without limitation, the Seller, Back-up Servicer and Trustee is are hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Seller, Back-up Servicer, Bond Insurer and Trustee and such any Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables Trust Assets provided for under this Agreement, including, without limitation, and all authority over the Accounts and over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, Servicer in the Collection Account, Investment Account or the Finance Charge Class A Certificate Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicer.Trust Assets,
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Rockford Industries Inc)
Servicer Defaults. If any one of the following events (each, a "“Servicer Default"”) shall occur and be continuing:
(a) any failure by the Servicer to deliver to the related Trustee for deposit in any of the Accounts or the Certificate Distribution Account any required payment or to direct the Indenture Trustee to make any paymentrequired distributions therefrom, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 or to make which failure continues unremedied for a drawing under any Letter period of Credit on or before the date occurring five three Business Days after discovery of such failure by an officer of the Servicer or after the date on which written notice of such paymentfailure, transfer, deposit or drawing or such instruction or notice is required requiring the same to be made remedied, shall have been given (i) to the Servicer by the related Trustee or given(ii) to the Servicer and to the Trustees by the Holders of Notes, as evidencing not less than 25% of the case may be, under Outstanding Amount of the terms of this Agreement or any Supplement; orNotes;
(b) failure on the part of by the Servicer (or so long as the Servicer is AHFC, the Seller) duly to observe or to perform in any material respect any other covenants or agreements of the Servicer (or so long as the Servicer is AHFC, the Seller) set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholdersother Basic Document, which continues failure shall (i) materially and adversely affect the rights of Certificateholders or Noteholders and (ii) continue unremedied for a period of 60 90 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given (A) to the Servicer or the Seller (as the case may be) by the Trustee, related Trustee or (B) to the Servicer or the Seller (as the case may be), and to the related Trustee by the Holders of Investor Certificates Notes, evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or Outstanding Amount of the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7Notes; or
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights occurrence of the Certificateholders and which continues to be incorrect in any material an Insolvency Event with respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by Seller or the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; or
(d) the Servicer shall (a) become insolvent, (b) fail to pay its debts generally as they become due, (c) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; then, and in each and every case, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 5125% of the Aggregate Investor AmountOutstanding Amount of the Notes (or, if the Notes have been paid in full and the Indenture has been discharged in accordance with its terms, by holders of Certificates evidencing not less than 25% of the Percentage Interests) by notice then given in writing to the Servicer (and to the Indenture Trustee and the Owner Trustee if given by the Investor CertificateholdersNoteholders) (a "Termination Notice"), may terminate all of the rights and obligations (other than the obligations set forth in Section 6.02 that accrued on or prior to the effective date of the termination) of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on On or after the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2specified in such written notice, all authority and power of the Servicer under this Agreement shall Agreement, whether with respect to the Notes, the Certificates or the Receivables or otherwise, shall, without further action, pass to and be vested in a the Indenture Trustee or such Successor ServicerServicer as may be appointed under Section 7.02; and, without limitation, the Indenture Trustee is and the Owner Trustee are hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf for the benefit of the predecessor Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of servicing rightsthe Receivables and related documents, or otherwise. The predecessor Servicer agrees to shall cooperate with the Trustee and such Successor Servicer and the Trustees in effecting the termination of the responsibilities and rights of the predecessor Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, including the transfer to the Successor Servicer for administration by it of all authority over all Collections which cash amounts that shall on at the date of transfer time be held by the predecessor Servicer for deposit, or which have been deposited by the predecessor Servicer, in the Collection Account, Accounts or the Finance Charge Certificate Distribution Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, Receivables and all Payments Ahead that shall at that time by held by the predecessor Servicer. All reasonable costs and expenses (including servicer conversion costs and attorneys’ fees) incurred in assisting connection with transferring the Receivable Files to the Successor Servicer and amending this Agreement to reflect such succession as Servicer pursuant to this Section shall be paid by the predecessor Servicer upon presentation of reasonable documentation of such costs and expenses. Any costs or expenses incurred in enforcing all rights to Insurance Proceeds. The connection with a Servicer Default shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing constitute an expense of administration under Title 11 of the Receivables in United States Bankruptcy Code or any other applicable Federal or State bankruptcy laws. Upon receipt of notice of the manner and at such times as the Successor occurrence of a Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidentialDefault, the Successor Servicer Indenture Trustee shall be required give notice thereof to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicereach Rating Agency.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Honda Auto Receivables 2004-3 Owner Trust)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuingcontinuing with respect to the Servicer:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to Section 4.5 make any payment, transfer or deposit or to make a drawing take any action under any Letter of Credit Enhancement Agreement on or before the date occurring five Business Days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; orAgreement, which failure is not cured within five Business Days after notice of such failure from the Trustee to the Servicer;
(b) failure on the part of the Servicer duly to observe or perform its covenant not to create any Lien on any Receivable which failure has a material adverse effect on the Certificateholders and which continues unremedied for a period of sixty (60) days after written notice to it of such failure; provided, however, that a "Servicer Default" shall not be deemed to have occurred if the Seller or the Servicer shall have repurchased the related Receivables or, if applicable, all of the Receivables during such period in accordance with the provisions of this Agreement;
(c) failure on the part of the Servicer duly to observe or perform any material respect any other covenants or agreements of the Servicer set forth in this Agreement (other than with respect to those specified in clause (a) or any Supplement (b) above and with respect to clauses (viii), (ix) and (x) under Section 3.3(a) hereof, to the extent the terms of Section 3.3(c) hereof have been complied with) which failure has a material adverse effect on the Certificateholders, Certificateholders and which continues unremedied for a period of 60 thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; or;
(cd) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series and which material adverse effect continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee; provided, however, that a "Servicer Default" shall not be deemed to have occurred if the Seller or to the Servicer and shall have repurchased the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicerrelated Receivables or, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing applicable, all of such failure Receivables during such period in accordance with diligence and continuity; orthe provisions of this Agreement;
(de) the Servicer shall (a) become insolventconsent to the appointment of a conservator or receiver or liquidator or other similar official in any bankruptcy, (b) fail insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator or other similar official in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of sixty days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable bankruptcy, consent toinsolvency or reorganization statute, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, andits obligations; then, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenof any Servicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% of the Aggregate Investor Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all but not less than all of the rights and obligations (other than its obligations that have accrued up to the time of such termination) of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement)thereof. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; Servicer (a "Service Transfer") and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer; provided that in no event shall the Servicer incur any liability for any such action by the Trustee. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsServicer. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance under Section 10.1(a) for a period of 10 Business Days or under Section 10.1(b), (c) or (d) for a period of 60 Business Days, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement, and the Servicer shall provide the Trustee, any Agents, any Enhancement Providers, the Seller and the Certificateholders with an Officers' Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations. The Servicer shall, on shall immediately notify the date Trustee in writing of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor ServicerServicer Default.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (CDF Funding, Inc.)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 Deal Agent as required by this Agreement, or to make a drawing under deliver any Letter of Credit required Monthly Report or other Required Reports hereunder on or before the date occurring five three Business Days after the date such payment, transfer, deposit or drawing or such deposit, instruction or notice or report is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; orAgreement;
(b) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the CertificateholdersPurchasers, which continues unremedied for a period of 60 30 days after the first to occur of (i) the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Trustee, or to Deal Agent and (ii) the date on which the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; orbecomes aware thereof;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders Purchasers and which continues to be incorrect in any material respect unremedied for a period of 60 30 days after the first to occur of (i) the date on which written notice of such failure, incorrectness requiring the same to be remedied, remedied shall have been given to the Servicer by the Trustee, or Deal Agent and (ii) the date on which the Servicer becomes aware thereof;
(d) an Insolvency Event shall occur with respect to the Servicer Servicer;
(e) an Insolvency Event shall occur with respect to the Subservicer and the Trustee Seller fails to replace the Subservicer with the Backup Servicer or other acceptable party within 30 days;
(f) any material delegation of the Servicer's or Subservicer's duties which is not permitted by Section 7.1;
(g) any financial or Asset information reasonably requested by the Holders Deal Agent or the Purchaser as provided herein is not reasonably provided as requested;
(h) the rendering against the Servicer of Investor Certificates evidencing Undivided Interests aggregating not less than 25% a final judgment, decree or order for the payment of money in excess of U.S. $1,000,000 and the continuance of such judgment, decree or order unsatisfied and in effect for any period of 61 consecutive days without a stay of execution;
(i) the failure of the Aggregate Investor Amount, Servicer to make any payment due with respect to aggregate recourse debt or other obligations with an aggregate principal amount exceeding U.S. $1,000,000 or the occurrence of any event or condition which would permit acceleration of such recourse debt or other obligations if such failure canevent or condition has not be cured within such 60-day period owing been waived;
(j) any change in the management of the Servicer relating to causes beyond the control positions of ServicerPresident, if Servicer shall fail to proceed promptly to cure CEO, Chairman of the same Board and thereafter prosecute the curing of such failure with diligence and continuityExecutive Vice President; or
(dk) any change in the control of the Servicer shall (a) become insolvent, (b) fail to pay its debts generally as they become due, (c) voluntarily seek, consent to, which takes the form of either a merger or acquiesce consolidation in which the benefit or benefits of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same Servicer is not dismissed within 90 days after its filing; the surviving entity, then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% of the Aggregate Investor AmountDeal Agent, by written notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Bankvest Capital Corp)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; orSupplement on or before three Business Days after the date such payment, transfer or deposit is required to be made;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which that has a material adverse effect on the Certificateholdersholder of the Transferor Certificate or the Certificates of any Series, which failure continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders holders of Investor Certificates of any Series evidencing Undivided Interests in the Trust Assets aggregating not less more than 2550% of the Aggregate Investor AmountInvested Amount of any Series materially adversely affected thereby; or the Servicer shall delegate assign its duties under this Agreement, except as permitted by Section Sections 8.2, 8.5 and 8.7; or;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement or in any certificate or report delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders holder of the Transferor Certificate or the Investor Certificates of any Series and which failure continues to be incorrect in any material respect unremedied for a period of 60 days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders holders of Investor Certificates of any Series evidencing Undivided Interests in the Trust Assets aggregating not less than 2551% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control Invested Amount of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuityany Series materially adversely affected thereby; or
(d) the Servicer shall (a) become insolvent, (b) fail to pay its debts generally as they become due, (c) voluntarily seek, consent to, to or acquiesce in the benefit or benefits of any Debtor Relief Lawthe Bankruptcy Code or, voluntarily or (d) involuntarily, become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Lawunder the Bankruptcy Code, other than as a creditor or claimant, and, and in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after of its filing; then, in the event of any Servicer Default, so long as such the Servicer Default shall not have been remedied, either the TrusteeTrustee may, or and at the Holders direction of the holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 51% of the Aggregate Investor AmountInvested Amount of any Series materially and adversely affected thereby, shall by notice then given in writing to the Servicer and the Transferor (with a copy thereof to each Rating Agency and to the Trustee if given by a Person other than the Investor Certificateholders) Trustee (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement)thereof. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement and each Supplement shall pass to and be vested in a Successor ServicerServicer (a "Service Transfer"); and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, which grant of authority is irrevocable and coupled with an interest, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Servicer agrees to cooperate with the Trustee Trustee, the Transferor and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, Servicer in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsServicer. The Servicer shall at its expense promptly transfer transfer, to the extent it is permitted by applicable law to do so, its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer transfer, to the extent it is permitted by applicable law to do so, to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably requestrequest and shall, to the extent not prohibited by licensing restrictions, provide access to or copies of computer software, including by means of sublicensing arrangements if applicable, to the extent necessary for the continued servicing of the Receivables; provided, however, that the Servicer shall not be required, to the extent it has an ownership interest in any electronic records, computer software or licenses, to transfer, assign, set-over or otherwise convey such ownership interest(s) to the Successor Servicer. The Servicer at its expense shall provide the Successor Servicer with access to any computer hardware in its possession for a reasonable time after the Servicer's termination to the extent necessary for the uninterrupted servicing of the Receivables. Notwithstanding the foregoing, the Servicer shall not be required to provide such access, whether with respect to computer hardware or software, if to provide such access would violate applicable contractual restrictions (including pursuant to any licensing arrangements to which Stone Container is a party); provided, however, that Stone Container shall use its reasonable best efforts in seeking consents or waivers necessary to permit the Successor Servicer to have such access. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicer.be
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Stone Container Corp)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer instruct or deposit or to give instructions or notice to the Receivables Trustee (or the Bank Account Operator acting on the Receivable Trustee's behalf) pursuant to Section 4.5 an agreed schedule of collections and allocations or to instruct the Receivables Trustee (or the Bank Account Operator acting on the Receivable Trustee's behalf) to make a drawing any required drawing, withdrawal, or payment pursuant to the relevant documents including under any Letter of Credit enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit deposit, withdrawal or drawing or such instruction instructions or notice is required to be made or given, as the case may be, under the terms of this Agreement Deed or any Supplement; orRelevant Document;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement Deed or any Supplement Relevant Document which has a material adverse effect Material Adverse Effect on the Certificateholdersinterests of the Investor Beneficiaries of any Outstanding Issuance and which failure, which if capable of remedy, continues unremedied for a period of 60 30 days or more after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Receivables Trustee, or to the Servicer and the Receivables Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% Beneficiary or Investor Beneficiaries holding 50%, or more of the Aggregate Investor Amount; or Interests in respect of any Outstanding Series adversely affected thereby and continues to have a Material Adverse Effect on the interests of such Investor Beneficiary in respect of such Outstanding Series for such period;
(c) delegation by the Servicer shall delegate of its duties under this AgreementDeed to any other entity, except as permitted by Section 8.7; orClause 10.6 (Delegation of Duties);
(cd) any relevant representation, warranty or certification made by the Servicer in this Agreement, any Supplement Deed or in any certificate delivered pursuant to this Agreement or any Supplement shall prove hereto proves to have been incorrect when made, which has a material adverse effect Material Adverse Effect on the rights interests of the Certificateholders Investor Beneficiaries in respect of any Outstanding Series and which continues to be incorrect in any material respect for a period of 60 days or more after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, Receivables Trustee or to the Servicer and the Receivables Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% Beneficiary or Investor Beneficiaries holding 50%, or more of the Aggregate Investor Amount, or if Interest in respect of any Outstanding Series adversely affected thereby and continues to have a Material Adverse Effect on the interests of the Investor Beneficiary in respect of any Outstanding Series affected for such failure cannot be cured within such 60-day period owing to causes beyond period;
(e) the control of Servicer, if Servicer shall fail consent to proceed promptly or take any corporate action relating to cure the same appointment of a receiver, administrator, administrative receiver, liquidator, trustee or similar officer of it or relating to all or substantially all of its revenues and thereafter prosecute assets;
(f) an order of the curing court is made for the winding-up, dissolution, administration or reorganisation (except for a solvent re-organisation) of the Servicer and such failure with diligence order shall have remained in force undischarged or unstayed for a period of 60 days;
(g) a receiver, administrator, administrative receiver, liquidator, trustee or similar officer is legally and continuityvalidly appointed over the Servicer or relating to all of the Servicer's revenues and assets; or
(dh) a duly authorised officer of the Servicer shall (a) become insolvent, (b) fail admit in writing that the Servicer is unable to pay its debts generally as they become due, (cfall due within the meaning of Section 123(1) voluntarily seek, consent to, of the Insolvency Act 1986 or acquiesce in the Servicer makes a general assignment or trust for the benefit of or benefits a composition with its creditors or voluntarily suspends payment of any Debtor Relief Lawits obligations with a view to the general readjustment or rescheduling of its indebtedness, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; then, then so long as such Servicer Default shall not have been remediedremedied within the applicable grace period (if any), either the Trustee, Beneficiaries (or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% of the Aggregate Investor Amount, by notice then given in writing to while the Servicer (and to the Trustee if given by is TPF, the Investor CertificateholdersBeneficiaries) (a "Termination Notice"), may by unanimous vote resolve to terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and Deed by notice then given in and writing to the Receivables Servicer and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and Facilitator (a Termination Notice). Notwithstanding the foregoing, a delay in enforcing all rights or failure of performance of matters referred to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer (a) in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligationsparagraph (a) above, if anycapable of remedy, under the Letter remain unremedied for a period of Credit to the Successor Servicer.five Business Days or
Appears in 1 contract
Servicer Defaults. If any one of the following ----------------- events (a "Servicer Default") shall occur and be continuing:: ----------------
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 Article IV or to instruct the Trustee to make a drawing any required drawing, ---------- withdrawal, or payment under any Letter of Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; orAgreement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agreement, which has a material adverse effect on the Certificateholders, Certificateholders of any Series (which determination shall be made without regard to whether funds are available to the Certificateholders of any Series under any applicable Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by (i) the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Investor AmountInterest of any Series adversely affected thereby or (ii) to the extent provided in any Supplement by the related Enhancement Provider, and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; or-----------
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights Certificateholders of any Series (which determination shall be made without regard to whether funds are available to the Certificateholders of any Series under any applicable Enhancement) and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by (i) the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Investor AmountInterest of any Series adversely affected thereby or (ii) to the extent provided in any Supplement by the related Enhancement Provider, or if and continues to materially adversely affect such failure cannot be cured within Investor Certificateholders for such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuityperiod; or
(d) the Servicer shall (a) become insolventconsent to the appointment of a conservator or receiver or liquidator in any insolvency, (b) fail readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable insolvency or reorganization statute, consent to, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filingobligations; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate Investor AmountInterest, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the ------------------ rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this ------------ Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsrights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account orExcess Funding Account, the Principal and any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsRecoveries and Interchange allocable to the Trust. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to ------------ disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferrable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Accounts and the Receivables; provided, however, that such software shall be used by the -------- ------- Successor Servicer solely for the purposes of servicing the Accounts and the Receivables. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, obligations under the Letter of Credit Enhancement with respect to any Series to the Successor Servicer.
Appears in 1 contract
Servicer Defaults. If any one of the following events (a "“Servicer Default"”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or into the Collection Account (including, without limitation, with respect to give instructions or notice to the Trustee pursuant to Section 4.5 or to make a drawing under any Letter bifurcation and remittance of Credit on or before the date occurring five Business Days after the date such payment, transfer, deposit or drawing or such instruction or notice is Collections) as required to be made or given, as the case may be, under the terms of by this Agreement or any Supplement; orwhich continues unremedied for a period of two Business Days;
(b) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or the other Transaction Documents to which the Servicer is a party (including, without limitation, any Supplement which has a material adverse effect on delegation of the Certificateholders, which Servicer’s duties that is not permitted by Section 6.1) and the same continues unremedied for a period of 60 30 days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure, failure requiring the same to be remedied shall have been given to the Servicer (with a copy to the Backup Servicer) by the Administrative Agent or any Purchaser Agent or the Trustee and (ii) the date on which a Responsible Officer of the Servicer acquires knowledge thereof;
(c) the failure of the Servicer to make any payment when due (after giving effect to any related grace period) with respect to any recourse debt or other obligations, which debt or other obligations are in excess of United States $5,000,000, individually or in the aggregate, or the occurrence of any event or condition that has resulted in the acceleration of such recourse debt or other obligations, whether or not waived;
(d) an Insolvency Event shall occur with respect to the Servicer;
(e) the Servicer fails in any material respect to comply with the Credit and Collection Policy and the Servicing Standard regarding the servicing of the Collateral and the same continues unremedied for a period of 30 days (if such failure can be remedied, ) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the TrusteeAdministrative Agent or any Purchaser Agent or the Trustee and (ii) the date on which a Responsible Officer of the Servicer acquires knowledge thereof;
(f) as of any Determination Date, the Average Portfolio Charged-Off Ratio exceeds 3.5%;
(g) the Servicer consents or agrees to, or otherwise permits to occur, under circumstances in which the Servicer could have reasonably prevented the occurrence thereof, any material amendment, modification, change, supplement or rescission (any of the foregoing an “amendment” for purposes of this Section 6.18(g)) of or to the Servicer Credit and Collection Policy (after the adoption of same) in whole or in part that could have a Material Adverse Effect on the Collateral, the Administrative Agent, any Purchaser Agent or the other Secured Parties, without the prior written consent of the Administrative Agent and each Purchaser Agent which amendment shall remain in effect for a period of ten Business Days after notice thereof is delivered to the Administrative Agent (which notice shall be delivered within seven days after the effectiveness of such amendment) and the Trustee Administrative Agent shall not have delivered a written consent thereto during such ten Business Day period; provided, however, that such prior written consent shall not be required in the case of an amendment which was mandated by any Applicable Law or Governmental Authority;
(h) the Holders Company or an Affiliate thereof shall cease to be the Servicer;
(i) the occurrence or existence of Investor Certificates evidencing Undivided Interests aggregating not less than 25any change with respect to the Servicer which has a Material Adverse Effect;
(j) the Company fails to maintain the aggregate of its GAAP stockholders’ equity and subscribed stockholders’ equity in an amount equal to at least 80% of the Aggregate Investor Amount; or initial committed equity, as increased by (i) 80% of the proceeds of any equity offerings of the Company consummated after the Initial Closing Date, and (ii) 50% of cumulative positive net income earned by the Company after the Initial Closing Date;
(k) any failure by the Servicer shall delegate its duties to deliver any required Servicing Report or other Required Reports hereunder on or before the date occurring two Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement, except as permitted by Section 8.7; or;
(cl) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Transaction Document or in any certificate delivered pursuant to this Agreement or any Supplement Transaction Document shall prove to have been incorrect when made, which has a material adverse effect Material Adverse Effect on the rights of Administrative Agent, any Purchaser Agent or the Certificateholders Secured Parties and which continues to be incorrect in any material respect unremedied for a period of 60 30 days after the earlier to occur of (i) the date on which written notice of such failure, incorrectness requiring the same to be remedied, remedied shall have been given to the Servicer by the TrusteeAdministrative Agent or any Purchaser Agent or the Trustee and (ii) the date on which a Responsible Officer of the Servicer acquires knowledge thereof;
(m) [Reserved];
(n) any financial or other information reasonably requested by the Administrative Agent, any Purchaser Agent or any Purchaser is not provided as requested within a reasonable amount of time following such request;
(o) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of United States $7,500,000, individually or in the aggregate, and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than 60 consecutive days without a stay of execution;
(p) any change in the management of the Servicer (whether by resignation, termination, disability, death or lack of day to day management) relating to any four of Xxx Xxxxxx, Xxxx Xxxxxxxx, Xxx Xxxxxx, Xxxxx Xxxxxxx-Xxxxxxx, Xxxx Xxxxxx, Xxxx Xxxxxxxxx, Xxx Xxxxxxxx and Xxx Xxxxxxxx, or any failure by any four of the aforementioned Persons to provide active and material participation in the Servicer’s daily activities including, but not limited to, general management, underwriting, and the credit approval process and credit monitoring activities, which no later than 60 days after the occurrence of any event specified above is not cured by the Servicer hiring a reputable, experienced individual reasonably satisfactory to the Administrative Agent and each Purchaser Agent to replace the Person who is no longer actively participating in the management of the Servicer and the Trustee or which is not waived in writing by the Holders Administrative Agent and each Purchaser Agent; provided, however, that time relating to an individual’s vacation within the Servicer’s employee policy and customary industry standards shall not constitute lack of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of day to day management or failure to provide active and material participation in the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond Servicer’s daily activities;
(q) any change in the control of Servicerthe Servicer that takes the form of either a merger or consolidation that does not comply with the provisions of Section 5.5(b);
(r) the Subservicing Agreement with JPMorgan FCS Corp. ceases to be in effect for 90 days during such time as it is required to be in effect hereunder, if Servicer shall fail and such Subservicing Agreement is not replaced with subservicing arrangements satisfactory to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuityAdministrative Agent in its sole discretion; or
(ds) the Servicer shall unpaid outstanding face amount of the $100,000,000 Delayed Draw Extendible Senior Secured Notes due 2008 of the Company (athe “Fortress Notes”) become insolvent, (b) fail has been declared due and payable in full following the occurrence of an event of default with respect to pay its debts generally as they become due, (c) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any Debtor Relief Law, or (d) become a party Fortress Notes; then notwithstanding anything herein to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thencontrary, so long as any such Servicer Default shall not have been remedied, either remedied within any applicable cure period prior to the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% date of the Aggregate Investor AmountServicer Termination Notice (defined below), the Administrative Agent, by written notice then given in writing to the Servicer (and with a copy to the Trustee if given by the Investor Certificateholdersand Backup Servicer) (a "“Servicer Termination Notice"”), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Sale and Servicing Agreement (NewStar Financial, Inc.)
Servicer Defaults. If any one of the following events (a "“Servicer Default"”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit such payment, transfer or deposit on or before the date occurring five (5) Business Days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement Agreement, the Indenture or any Indenture Supplement; or;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, an Adverse Effect and which continues unremedied for a period of 60 sixty (60) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2510% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Section 8.7; orSections 5.02 and 5.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect an Adverse Effect on the rights of the Certificateholders Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which Adverse Effect continues to be incorrect in any material respect for a period of 60 sixty (60) days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2510% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or if certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicerrepresentation, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; orwarranty or certification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (a60) become insolvent, (b) fail days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(ce) voluntarily seek, consent to, or acquiesce any other Servicer Default described in the benefit or benefits of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% of the Aggregate Investor Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicer.related Indenture Supplement;
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Signet Group PLC)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuingcontinuing with respect to the Servicer:
(a) any failure by the Servicer to make any payment, transfer or deposit deposit, or to give instructions or notice to the Trustee pursuant to Section 4.5 make such payment, transfer or deposit, or to make a drawing give notice to the Trustee as to any action to be taken under any Letter of Credit Enhancement Agreement, in any case on or before the date occurring five two (2) Business Days after the date receipt of written notice of such payment, transfer, deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; orfailure;
(b) failure on the part of the Servicer duly to observe or perform its covenant not to create any lien on any Receivable, which failure has a material adverse effect on the Certificateholders and which continues unremedied for a period of thirty (30) days; provided, however, that a Servicer Default shall not be deemed to have occurred if the Depositor shall have repurchased the affected Receivables or, if applicable, all of the Receivables during such period in accordance with the provisions of this Agreement; (c) failure on the part of the Servicer duly to observe or perform any material respect any other covenants or agreements of the Servicer set forth in this Agreement Agreement, including the delivery of any annual report or any Supplement certificate pursuant to Sections 3.05 or 3.06 hereof, which failure has a material adverse effect on the Certificateholders, Certificateholders and which continues unremedied uncured for a period of 60 thirty (30) days (or, upon delivery to the Trustee and to Certificateholders of a Servicer Default Certificate, such longer period as may be reasonably necessary to effect a cure) after the date on which receipt by the Servicer of written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; or
(cd) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement (including any certificates or any Supplement statements delivered pursuant to the requirements of Section 3.04 and Section 3.05) shall prove to have been materially incorrect when made, which has a material adverse effect on the rights of the Certificateholders made and which continues to be incorrect in any material respect for a period of 60 thirty (30) days after the date on which receipt of written notice thereof and as a result of which the interests of the Certificateholders are materially and adversely affected; provided, however, that a Servicer Default shall not be deemed to have occurred if the Depositor shall have repurchased the affected Receivables or, if applicable, all of the Receivables during such failureperiod in accordance with the provisions of this Agreement; or (e) the Servicer shall consent to the appointment of a conservator or receiver or liquidator or other similar official in any bankruptcy, requiring insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the same Servicer or of or relating to be remediedall or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator or other similar official in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been given to entered against the Servicer by the Trustee, Servicer; or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; or
(d) the Servicer shall (a) become insolvent, (b) fail admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable bankruptcy, consent toinsolvency or reorganization statute, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of its obligations (any such event, an "Insolvency Event"). In the event of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenServicer Default, so long as such Servicer Default shall not have been remedied, either the Trustee, Trustee or the Holders pursuant to a Consent of Investor Certificates evidencing Undivided Interests aggregating not less than 51% of the Aggregate Investor AmountCertificateholders, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all but not less than all of the rights and obligations (other than its obligations that have accrued up to the time of such termination) of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if anythereof. The Trustee shall give prompt written notice of any such event to the Rating Agencies, as Holder well as any waivers or cures of the Exchangeable Certificate under this Agreement)any such event promptly after receipt of written notice thereof. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.210.02 hereof, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; Servicer (a "Service Transfer") and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer; provided, however, that in no event shall the Servicer incur any liability for any such action taken by the Trustee. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request request, and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. Gottschalks, as Servicer also agrees to provide such access, computer time and personnel to the Successor Servicer as shall be necessary in order to assist the Successor Servicer in assuming its duties hereunder. To the extent that compliance with this Section 10.1 10.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance under subsection (a) of this Section 10.01 for a period of up to five (5) Business Days after the applicable grace period, or a delay in or failure of performance (or the continuance of any such delay or failure) under subsection (b), (c) or (d) of this Section 10.01 for a period of up to thirty (30) Business Days (or, upon delivery to the Trustee and Certificateholders of a Servicer Default Certificate, such longer period as is reasonably necessary to effect a cure) shall not constitute a Servicer Default if such delay or failure or continuance was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer of its obligation to use its best efforts to perform its respective obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Enhancement Providers and the Depositor with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations. The Servicer shall, on shall immediately notify the date Trustee in writing of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor ServicerServicer Default.
Appears in 1 contract
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 Article IV or to instruct the Trustee to make a drawing any required drawing, withdrawal, or payment under any Letter of Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement Agreement; provided, however, that any such failure caused by a non- willful act of the Servicer shall not constitute a Servicer Default if the Servicer promptly remedies such failure within five Business Days after receiving notice of such failure or any Supplement; orotherwise becoming aware of such failure;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agreement, which has a material adverse effect on the Certificateholders, Investor Certificateholders of any Series and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Invested Amount of any Series materially adversely affected thereby and continues to materially adversely affect such Investor Amount; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; orCertificateholders for such period;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights Investor Certificateholders of the Certificateholders any Series and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Invested Amount of any Series materially adversely affected thereby and continues to materially adversely affect such Investor Amount, or if Certificateholders for such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuityperiod; or
(d) the Servicer shall (a) become insolventconsent to the appointment of a bankruptcy trustee or receiver or liquidator in any bankruptcy proceeding or any other insolvency, (b) fail readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or receiver or liquidator in any bankruptcy proceeding or any other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable insolvency or reorganization statute, consent to, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filingobligations; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate Investor Invested Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsrights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account orExcess Funding Account, the Interest Funding Account or the Principal Account, and any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, obligations under the Letter of Credit Enhancement with respect to any Series to the Successor Servicer. In connection with any service transfer, all reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the records, correspondence and other documents with respect to the Receivables and the other Trust Property to the Successor Servicer and amending this Agreement to reflect such succession as Successor Servicer pursuant to this Section 10.1 and Section 10.2 shall be paid by the Servicer (unless the Trustee is acting as the Servicer on a temporary basis, in which case the original Servicer shall be responsible therefor) upon presentation of reasonable documentation of such costs and expenses. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.1(a) for a period of five Business Days or under subsection 10.1(b) or (c) for a period of 60 days, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages, bank closings, communications outages, computer failure or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Enhancement Provider, the Transferor and the Holders of Investor Certificates with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Green Tree Financial Corp)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit such payment, transfer or deposit on or before the date occurring five (5) Business Days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement Agreement, the Indenture or any Indenture Supplement; or;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, an Adverse Effect and which continues unremedied for a period of 60 sixty (60) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2510% of the Aggregate Investor AmountOutstanding Amount (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of the Notes of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Section 8.7; orSections 5.02, 5.05 and 5.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders an Adverse Effect (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which Adverse Effect continues to be incorrect in any material respect for a period of 60 sixty (60) days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2510% of the Aggregate Investor AmountOutstanding Amount (or, with respect to any such representation, warranty or if certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicerrepresentation, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; orwarranty or certification relates);
(d) the Servicer shall (a) become insolventconsent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, (b) fail readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to pay the Servicer or of or relating to all or substantially all its debts generally as they become due, (c) voluntarily seek, consent toproperty, or acquiesce a decree or order of a court or agency or supervisory authority having jurisdiction in the benefit premises for the appointment of a bankruptcy trustee or benefits a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of any Debtor Relief Lawdebt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (d60) become a party days; or the Servicer shall admit in writing its inability to pay
(or be made the subject ofe) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, andServicer Default described in the related Indenture Supplement; then, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenof any Servicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate Investor Outstanding Amount, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "Servicer Termination Notice"), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and Agreement; provided, however, if within sixty (60) days of receipt of a Servicer Termination Notice (1) the Indenture Trustee does not receive any bids from Eligible Servicers in and accordance with subsection 7.02(c) to act as a Successor Servicer, (2) receives an Officer's Certificate of the Servicer to the Receivables effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Servicer Termination Notice, and (3) the proceeds thereof (other than Indenture Trustee is legally unable to act as Successor Servicer, then the Indenture Trustee shall grant a right of first refusal to the Transferor which would permit the Transferor at its rights and interest, if any, as Holder option to acquire the Notes on the Payment Date in the next calendar month. The price for the Notes shall be equal to the sum of the Exchangeable Certificate under this Agreement)amounts specified therefor with respect to each outstanding Series in the related Indenture Supplement. The Transferor shall notify the Indenture Trustee prior to the Record Date for the Payment Date of the acquisition if it is exercising such right of first refusal. If the Transferor exercises such right of first refusal, the Transferor shall deposit the amount of the purchase price into the Collection Account not later than 1:00 p.m., New York City time, on such Payment Date in immediately available funds. The amount of the purchase price shall be allocated and distributed to Noteholders in accordance with the terms of the Indenture and each Indenture Supplement. After receipt by the Servicer of such a Servicer Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 10.27.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a Successor Servicer"Servicing Transfer"); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsServicing Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsServicer. The Servicer shall promptly within twenty (20) Business Days transfer its -47- 52 electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of ten (10) Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of sixty (60) Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer shallfrom using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, on the date Owner Trustee, each Transferor and any Series Enhancer with an Officer's Certificate giving prompt notice of any servicing transfersuch failure or delay by it, transfer all together with a description of its rights and efforts so to perform its obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Advanta Business Recievables Corp)
Servicer Defaults. If any one of the following events (a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit such payment, transfer or deposit on or before the date occurring five (5) Business Days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement Agreement, the Indenture or any Indenture Supplement; or;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement, the Indenture, any Indenture Supplement, the Affinity Card Agreement or any Supplement which has a material adverse effect on the Certificateholders, Facilities Management Agreement and which continues unremedied for a period of 60 sixty (60) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2510% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes Outstanding (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Notes Outstanding of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Section 8.7; orSECTIONS 6.02 and 6.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders an Adverse Effect and which Adverse Effect continues to be incorrect in any material respect for a period of 60 sixty (60) days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2510% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes Outstanding (or, with respect to any such representation, warranty or if certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Notes Outstanding of all Series to which such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicerrepresentation, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuitywarranty or certification relates); or
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar Proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or an action seeking a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar Proceedings, or the winding-up or liquidation of its affairs, shall have been commenced against the Servicer and 52 such action shall have remained undischarged or unstayed for a period of sixty (a60) become insolvent, (b) fail days or an order or decree providing for such relief shall have been entered; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable bankruptcy, consent toinsolvency or reorganization statute, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, andits obligations; then, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenof any Servicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 51% a majority of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes Outstanding, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "Termination NoticeTERMINATION NOTICE"), may terminate all but not less than all of the rights and obligations of the Servicer as Servicer under this Agreement Agreement, the Indenture and each Indenture Supplement; PROVIDED, HOWEVER, if within sixty (60) days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with SECTION 8.02(c) to act as a Successor Servicer and receives an Officer's Certificate of the Servicer to the Receivables effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall grant a right of first refusal to the Transferor which would permit the Transferor at its option to purchase the Notes on the Distribution Date in the next calendar month. The Indenture Trustee shall notify each Rating Agency of any Servicer Default of which a Responsible Officer has actual knowledge and shall provide each Rating Agency with a copy of any Termination Notice given to the Servicer and the proceeds thereof (other than its rights and interest, if any, as Holder Owner Trustee pursuant to this SECTION 8.01. The purchase price for the Notes purchased pursuant to the preceding paragraph shall be equal to the sum of the Exchangeable Certificate under this Agreement)amounts specified therefor with respect to each outstanding Series in the related Indenture Supplement. The Transferor shall notify the Indenture Trustee prior to the Record Date for the Distribution Date of the purchase if it is exercising such right of first refusal. If the Transferor exercises such right of first refusal, the Transferor shall deposit the purchase price into the Collection Account not later than 11:00 a.m., New York City time, on the Transfer Date preceding such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Noteholders in accordance with the terms of the Indenture and each Indenture Supplement. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 10.2SECTION 8.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a Successor Servicer"SERVICE TRANSFER"); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsServicer. The Servicer shall promptly within twenty (20) Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. The predecessor Servicer shall be responsible for all expenses incurred in transferring the servicing duties to the Successor Servicer. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of ten (10) Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of sixty (60) Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer shallfrom using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, on the date Issuer, each Transferor and any Series Enhancer with an Officer's Certificate giving prompt notice of any servicing transfersuch failure or delay by it, transfer all together with a description of its rights and efforts so to perform its obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Compucredit Corp)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 Article IV or to instruct the Trustee to make a drawing under any Letter of Credit required withdrawal or payment on or before the date occurring five Business Days days after the date such payment, transfer, deposit deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any applicable Supplement; orPROVIDED, HOWEVER, that any such failure caused by a nonwillful act of the Servicer shall not constitute a Servicer Default if the Servicer promptly remedies such failure within five business days after receiving notice thereof;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Supplement, which has a material adverse effect on the Certificateholders, Investor Certificateholders of any Series (without regard to the amount of any Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Invested Amount of any Series adversely affected thereby and continues to materially adversely affect such Investor AmountCertificateholders for such period; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; or;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights Investor Certificateholders of any Series (without regard to the Certificateholders amount of any Enhancement) and which continues to be incorrect in any 100 material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Invested Amount of any Series adversely affected thereby and continues to materially adversely affect such Investor Amount, or if Certificateholders for such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuityperiod; or
(d) the Servicer shall (a) become insolventconsent to the appointment of a conservator or receiver or liquidator in any insolvency, (b) fail readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable insolvency or reorganization statute, consent to, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filingobligations; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate Investor Invested Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and 101 deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsrights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Excess Funding Account or, the Principal and any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsProceeds and Net Interchange (if any) applicable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, obligations under the Letter of Credit Enhancement with respect to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to under subsection 10.1(a) for a period of ten (10) Business Days after the applicable grace period or under subsection 10.1(b) or (c) for a period of sixty (60) Business Days after the 102 applicable grace period shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Enhancement Provider, the Transferor and the Holders of Investor Certificates with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First Bank Corporate Card Master Trust)
Servicer Defaults. If any one of the following events (a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit on or before the date occurring five Business Days after the date such payment, transfer, deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; or
(b) failure on the part of the Servicer or any Co-Servicer duly to observe or perform in any material respect any other of the covenants or agreements of the Servicer or Co-Servicer set forth in this Agreement or any Supplement Relevant Document which has a material adverse effect Material Adverse Effect on the Certificateholders, interests of the Beneficiaries as a whole or of the Investor Beneficiaries of any Applicable Series and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer or, if applicable, any Co-Servicer by Investor Beneficiaries representing in aggregate more than one-half of the aggregate Investor Interests of any Applicable Series adversely affected thereby (copied to the Receivables Trustee) and continues to have a Material Adverse Effect on the interests of an Investor Beneficiary of any Applicable Series for such period;
(b) delegation by the Trustee, Servicer or to the any Co-Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or the Servicer shall delegate its duties under this AgreementAgreement to any other entity, except as permitted by Section 8.7; orClause 3.7;
(c) any relevant representation, warranty or certification made by the Servicer or any Co-Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove hereto proves to have been incorrect when made, which has a material adverse effect Material Adverse Effect on the rights interests of the Certificateholders Investor Beneficiaries of any Applicable Series and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer or, if applicable, any Co-Servicer by an Investor Beneficiary or Investor Beneficiaries representing in aggregate more than one-half of the Trustee, or aggregate Investor Interests of any Applicable Series affected thereby (copied to the Servicer Receivables Trustee) and continues to have a Material Adverse Effect on the Trustee by the Holders interests of an Investor Certificates evidencing Undivided Interests aggregating not less than 25% Beneficiary of the Aggregate Investor Amount, or if any Applicable Series affected for such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; orperiod;
(d) the Servicer or any Co-Servicer shall consent to or take any corporate action relating to the appointment of a receiver, administrator, administrative receiver, liquidator, trustee or similar officer of it or relating to all or substantially all of its revenues and assets or an order of the court is made for its winding-up, dissolution, administration or reorganisation (aexcept for a solvent re-organisation) become insolventand such order shall have remained in force undischarged or unstayed for a period of 60 days or a receiver, administrator, administrative receiver, liquidator, trustee or similar officer of it or relating to all of its revenues and assets is legally and validly appointed;
(be) fail a duly authorised officer of the Servicer or any Co-Servicer shall admit in writing that the Servicer or such Co-Servicer is unable to pay its debts generally as they become due, (cfall due within the meaning of Section 123(1) voluntarily seek, consent to, of the Insolvency Act 1986 or acquiesce in the Servicer or such Co-Servicer makes a general xxxxxxxent for the benefit of or benefits a composition with its creditors or voluntarily suspends payment of any Debtor Relief Lawits obligations with a view to the general readjustment or rescheduling of its indebtedness, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; then, then so long as such Servicer Default shall not have been remedied, either remedied the Trustee, Beneficiaries acting together or (as the Holders of case may be) the Investor Certificates evidencing Undivided Interests aggregating not less Beneficiaries representing in aggregate more than 51662/3% of the Aggregate Investor AmountInterest, by notice then given in writing to the Servicer or, if applicable, the Co-Servicer (and copied to the Trustee if given by the Investor CertificateholdersReceivables Trustee) (a "Termination NoticeTERMINATION NOTICE"), may terminate all of the rights and obligations of the Servicer and any Co-Servicer as Servicer and Co-Servicer respectively under this Agreement. For the avoidance of doubt, any Termination Notice given in accordance with this Clause 4.1 shall terminate the appointment of both the Servicer and any Co-Servicer regardless of which entity was the subject of the Servicer Default. Notwithstanding the foregoing, a delay in or failure of performance referred to in Clause 4.1(a), (b) or (c) for a period of 60 Business Days, shall not constitute a Servicer Default if such delay or failure could not have been prevented by the exercise of reasonable diligence by the Servicer or Co-Servicer, as the case may be, and such delay or failure was caused by an act of God, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power cuts or similar causes. The preceding sentence shall not relieve the Servicer or Co-Servicer from using reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and in and to the Receivables any relevant agreement and the proceeds thereof (other than its rights and interestServicer and, if anyapplicable, as Holder the Co-Servicer shall provide any Enhancement Provider, the Transferor, any Additional Transferor and each Beneficiary with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of the Exchangeable Certificate under this Agreement). After receipt by the Servicer cause of such Termination Notice, failure or delay and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant its efforts so to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer perform its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Beneficiaries Servicing Agreement (Barclaycard Funding PLC)
Servicer Defaults. If The happening of any one or more of the following events (shall constitute a "Servicer Default") shall occur and be continuingDefault hereunder:
(a) any Any failure by the either Servicer to make any payment, deposit, advance or transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit on or before the date occurring five Business Days after the date such payment, transfer, deposit or drawing or such instruction or notice is funds required to be made paid, deposited, advanced or given, as the case may be, transferred under the terms of this Agreement Agreement, and such failure continues unremedied for five (5) days after discovery by such Servicer of such failure or any Supplement; orreceipt by such Servicer of notice of such failure;
(b) failure Failure on the part of the either Servicer duly to observe or perform in any material respect any other of its respective covenants or agreements of the Servicer set forth contained in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, Supervisory Servicing Agreement which continues unremedied for a period of 60 thirty (30) days after the date on which earlier to occur of the Servicer obtaining actual knowledge of such failure or the Servicer's receipt of written notice of such failurefailure or breach as the case may be; provided, requiring however, if such failure shall be of a nature that it cannot be cured within thirty (30) days, such failure shall not constitute a Servicer Default hereunder if within such 30-day period the same Servicer gives notice to the Trustee and the Supervisory Servicer of the corrective action it proposes to take, which corrective action is agreed in writing by the Trustee to be remediedsatisfactory and the Servicer shall thereafter pursue such corrective action diligently until such default is cured but in no event longer than ninety (90) days after such notice is given;
(c) A decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been given entered against a Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of ninety (90) days;
(d) A Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to such Servicer by or of or relating to all or substantially all of its property;
(e) A Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency, bankruptcy or reorganization statute, make an assignment for the Trusteebenefit of its creditors or voluntarily suspend payments of its obligations;
(f) A Servicer shall cease to be an Eligible Servicer;
(g) A material adverse change occurs in the financial condition of a Servicer, or to which change materially impairs the ability of the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or the Servicer shall delegate to perform its duties obligations under this Agreement, except as permitted by Section 8.7; or
(ch) any representation, Any representation or warranty or certification made by the a Servicer in this Agreement, any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove Transaction Document proves to have been incorrect in any material respect when made, which has a material adverse effect on the rights of the Certificateholders Noteholders and which continues to have a material adverse effect or be incorrect in any material respect for a period of 60 thirty (30) days after the date on which written notice of such failureinaccuracy, requiring the same it to be remedied, shall have has been given to the Servicer Servicers by the Trustee, the Supervisory Servicer or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amountany Noteholder; provided, or however, if such failure inaccuracy is of a nature that it cannot be cured remedied within such 6030-day period owing and the Servicer gives notices to causes beyond the control Trustee and the Supervisory Servicer of Servicerthe corrective action it proposes to take, if Servicer shall fail which corrective action is agreed in writing by the Trustee to proceed promptly to cure the same be satisfactory and thereafter prosecute the curing of such failure with diligence and continuity; or
(d) the Servicer shall thereafter pursue such corrective action diligently until such default is cured but in no event longer than ninety (a90) become insolvent, (b) fail to pay its debts generally as they become due, (c) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% of the Aggregate Investor Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on from the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicernotice.
Appears in 1 contract
Servicer Defaults. If any one of the following events (a "“Servicer Default"”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or into the Collection Account (including with respect to give instructions or notice to the Trustee pursuant to Section 4.5 or to make a drawing under any Letter bifurcation and remittance of Credit on or before the date occurring five Business Days after the date such payment, transfer, deposit or drawing or such instruction or notice is Collections) as required to be made or given, as the case may be, under the terms of by this Agreement or any Supplement; orwhich continues unremedied for a period of two Business Days;
(b) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or the other Transaction Documents to which the Servicer is a party (including any Supplement which has a material adverse effect on delegation of the Certificateholders, which Servicer’s duties that is not permitted by Section 6.1) and the same continues unremedied for a period of 60 30 days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer (with a copy to the Backup Servicer) by the Trustee, Administrative Agent or to any Lender Agent or the Trustee and (ii) the date on which a Responsible Officer of the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; oracquires knowledge thereof;
(c) the failure of the Servicer to make any payment when due (after giving effect to any related grace period) with respect to any recourse debt or other obligations, which debt or other obligations are in excess of United States $5,000,000, individually or in the aggregate, or the occurrence of any event or condition that has resulted in the acceleration of such recourse debt or other obligations, whether or not waived;
(d) an Insolvency Event shall occur with respect to the Servicer;
(e) the Originator or an Affiliate thereof shall cease to be the Servicer;
(f) the Originator permits (i) Consolidated Net Worth to be less than $300,000,000 or (ii) the ratio of Consolidated Funded Debt to Consolidated Net Worth to exceed eight (8) times Consolidated Funded Debt (excluding trust preferred securities, preferred stock and subordinated convertible bonds) to Consolidated Net Worth (including trust preferred securities, preferred stock and subordinated convertible bonds);
(g) any failure by the Servicer to deliver any required Servicing Report or other Required Reports hereunder on or before the date occurring two Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement;
(h) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Transaction Document or in any certificate delivered pursuant to this Agreement or any Supplement Transaction Document shall prove to have been incorrect when made, which has a material adverse effect Material Adverse Effect on the rights of Administrative Agent, any Lender Agent or the Certificateholders Secured Parties and which continues to be incorrect in any material respect unremedied for a period of 60 30 days after the earlier to occur of (i) the date on which written notice of such failure, incorrectness requiring the same to be remedied, remedied shall have been given to the Servicer by the Trustee, Administrative Agent or to any Lender Agent or the Trustee and (ii) the date on which a Responsible Officer of the Servicer and the Trustee acquires knowledge thereof;
(i) any financial or other information reasonably requested by the Holders of Investor Certificates evidencing Undivided Interests aggregating Administrative Agent, any Lender Agent or any Lender is not less than 25% of provided as requested within 30 days following the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing ’s receipt of such failure with diligence and continuityrequest; or
(dj) the rendering against the Servicer shall (a) become insolventof one or more final judgments, (b) fail to pay its debts generally as they become duedecrees or orders for the payment of money in excess of United States $7,500,000, (c) voluntarily seek, consent to, individually or acquiesce in the benefit aggregate, and the continuance of such judgment, decree or benefits order unsatisfied and in effect for any period of any Debtor Relief Law, or (d) become more than 60 consecutive days without a party stay of execution; then notwithstanding anything herein to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thencontrary, so long as any such Servicer Default shall not have been remedied, either remedied within any applicable cure period prior to the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% date of the Aggregate Investor AmountServicer Termination Notice (defined below), the Administrative Agent, by written notice then given in writing to the Servicer (and with a copy to the Trustee if given by the Investor Certificateholdersand Backup Servicer) (a "“Servicer Termination Notice"”), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Loan and Servicing Agreement (NewStar Financial, Inc.)
Servicer Defaults. If any one of the following events (a "“Servicer Default"”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit on or before the date occurring five Business Days after the date such payment, transfer, deposit deposit, withdrawal or drawing or such instruction or notice is required to be made or givengiven by the Servicer, as the case may be, under the terms of this Agreement or any Supplement; or;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agreement, which has a material adverse effect on the Certificateholders, Noteholders of any Series and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, Issuer (or to the Servicer and the Indenture Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% on behalf of the Aggregate Investor Amount; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; orIssuer);
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders Issuer or Noteholders and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuityIssuer; or
(d) an Insolvency Event with respect to the Servicer shall (a) become insolvent, (b) fail to pay its debts generally as they become due, (c) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filinghave occurred; then, so long as such Servicer Default shall not have been remedied, either the TrusteeIssuer may, or if directed by the Holders Indenture Trustee (acting at the direction of Investor Certificates evidencing Undivided Interests aggregating Noteholders of not less than 5166 2/3% of the Aggregate Investor AmountOutstanding Dollar Principal Amount of the Notes for all Series), by delivery of a written notice then given in writing of termination to the Servicer (and to the Trustee if given by the Investor Certificateholders) Issuer (a "“Termination Notice"”), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee Issuer pursuant to Section 10.25.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee Issuer is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsrights and obligations. The Servicer agrees to cooperate with the Trustee Issuer and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds, Recoveries and Interchange (if any) applicable to the Issuer. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 5.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as shall be reasonably necessary for the Servicer to protect its interests. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 5.01(a) for a period of 10 additional Business Days or under subsection 5.01(b) or (c) for a period of 60 additional Business Days, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall deem necessary provide the Issuer with an Officer’s Certificate of the Servicer giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to protect perform its interestobligations. The For the avoidance of doubt, the determination of a Servicer shall, Default shall be based solely on the date provisions in this Section 5.01, and the occurrence of any a material instance of noncompliance with the applicable servicing transfer, transfer all criteria specified in Item 1122(d) of its rights and obligations, if any, under the Letter of Credit to the Successor ServicerRegulations AB shall not be determinative that a Servicer Default has occurred.
Appears in 1 contract
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; or;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2510% of the Aggregate aggregate unpaid principal amount of all Investor AmountCertificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Section 8.7; orSections 8.02 and 8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement, Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2510% of the Aggregate aggregate unpaid principal amount of all Investor AmountCertificates (or, with respect to any such representation, warranty or if certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicerrepresentation, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuitywarranty or certification relates); or
(d) the Servicer shall (a) become insolventconsent to the appointment of a conservator or receiver or liquidator in any insolvency, (b) fail readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable insolvency or reorganization statute, consent to, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, andits obligations; then, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenof any Servicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate aggregate unpaid principal amount of all Investor AmountCertificates, by notice then given in writing to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interestthereof; provided, however, if any, within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as Holder a Successor Servicer and receives an Officer's Certificate of the Exchangeable Certificate under this Agreement)Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall grant a right of first refusal to the Sellers which would permit the Sellers at their option to purchase the Certificateholders' Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders' Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Trustee pursuant to Section 10.210.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a Successor Servicer"Service Transfer"); and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-attorney- in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsServicer. The Servicer shall promptly within 20 Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer shallfrom using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, on the date Sellers, any Series Enhancer and the Investor Certificateholders with an Officer's Certificate giving prompt notice of any servicing transfersuch failure or delay by it, transfer all together with a description of its rights and efforts so to perform its obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citibank South Dakota N A)
Servicer Defaults. If any one of the following events (a "“Servicer Default"”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions to bank holding the Lockbox or notice to the Trustee pursuant to Section 4.5 or ACH Account to make a drawing under any Letter of Credit such payment, transfer or deposit on or before the date occurring five 3 Business Days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement Servicing Agreement, provided however, that where such failure is due to oversight, error or any Supplement; orother reason not including bad faith on the part of the Servicer, such 3 Business Day period shall commence upon notice to Servicer from Lender;
(b) failure on the part of the Servicer to duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Servicing Agreement or any Supplement which has a material adverse effect on in the Certificateholders, Loan Origination Agreement and which continues unremedied for a period of 60 30 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; orLender;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Servicing Agreement or in any certificate delivered pursuant to this Servicing Agreement or any Supplement shall prove to have been materially incorrect when made, which has a material materially adverse effect on the rights of the Certificateholders Loans (taken as a whole) and which materially adverse effect continues to be incorrect in any material respect for a period of 60 30 days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuityLender; or
(d) the Servicer shall (a) become insolventconsent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, (b) fail readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to Servicer or of or relating to all or substantially all its property, or an action seeking a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been commenced against Servicer and such action shall have remained undischarged or unstayed for a period of 60 days or an order or decree providing for such relief shall have been entered; or Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable bankruptcy, consent toinsolvency or reorganization statute, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filingobligations; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% of the Aggregate Investor AmountLender, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "“Termination Notice"”), may terminate all all, but not less than all, of the rights and obligations of the Servicer as Servicer servicer under this Servicing Agreement and appoint a Successor Servicer, subject to Section 4.02.
(e) Servicer alters its servicing practices in and a manner that has a material adverse effect on the Loans, the ability of Servicer to the Receivables and the proceeds thereof (other than perform its rights and interest, if any, as Holder of the Exchangeable Certificate obligations under this Servicing Agreement). After receipt by , the Loan Origination Agreement or on the transactions contemplated hereunder in general, and which material adverse effect continues for a period of 30 calendar days after the earlier of (x) the date on which Servicer becomes aware of such Termination Notice, material adverse effect and on (y) the date that a Successor Servicer on which notice of such material adverse effect shall have been appointed given to Servicer by the Trustee pursuant Lender.
(f) Servicer experiences a material deterioration in its financial condition such that Servicer is unable to Section 10.2, all authority and power of the Servicer fulfill its obligations under this Servicing Agreement shall pass to and be vested in any material respect (such material deterioration in financial condition, a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments“Financial Condition Event”), and to do and accomplish all other acts or things necessary or appropriate to effect the purposes such Financial Condition Event continues unremedied for a period of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on 90 calendar days after the date of transfer be held which notice of such Financial Condition Event shall either have given to Lender by Servicer or to Servicer by Lender. Notwithstanding the foregoing, a delay in or failure of performance shall not constitute a Servicer Default (i) under paragraph (a) above for deposita period of 10 Business Days after the applicable grace period or (ii) under paragraph (b) or (c) above for a period of 15 Business Days after the applicable grace period, if such delay or which have been deposited failure was caused by an act of God or the Servicerpublic enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, terrorism, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivablesterms of this Servicing Agreement, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in provide Lender with prompt notice of such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other recordsfailure or delay by it, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance together with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all a description of its rights and efforts so to perform its obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Servicing Agreement (GreenSky, Inc.)
Servicer Defaults. If any one of the following events (each, a "Servicer Default") shall ---------------- occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice credit to the Trustee pursuant to Section 4.5 or to make a drawing Collection Account any amount required under any Letter of Credit on or before the date occurring five Business Days after the date such payment, transfer, deposit or drawing or such instruction or notice is required this Agreement to be made so deposited or given, as the case may be, under the terms of this Agreement or any Supplement; or
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholderscredited, which failure continues unremedied for a period of 60 days two Business Days after discovery by the Servicer or receipt by the Servicer of written notice of such failure from the Issuer, the Indenture Trustee or the Insurer or after discovery of such failure by an officer of the Servicer;
(b) the Insurer, the Indenture Trustee or the Issuer shall not have received a report in accordance with Section 3.08 by the Servicer Report Date with respect to which such report is due and which shall continue unremedied for a period of one day after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; orgiven;
(c) any representation, warranty failure on the part of the Seller or certification made by the Servicer duly to observe or to perform any other covenants or agreements of the Seller or the Servicer set forth in this Agreement, any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when madeother Basic Document, which has a material adverse effect on failure shall (i) materially and adversely affect the rights of the Certificateholders Noteholders, the Insurer, the Issuer, the Owner Trustee or the Indenture Trustee and which continues to be incorrect in any material respect (ii) continue unremedied for a period of 60 30 days after the date on which the Seller, the Custodian or the Servicer shall have knowledge of such failure or written notice of such failure, requiring the same to be remedied, shall have been given given
(A) to the Servicer Seller or the Servicer, as the case may be, by the TrusteeInsurer, the Issuer, the Owner Trustee or the Indenture Trustee or (B) to the Servicer Seller or the Servicer, as the case may be, and to the Issuer and the Indenture Trustee by Noteholders, acting together as a single class, evidencing in the Holders of Investor Certificates evidencing Undivided Interests aggregating aggregate not less than 25% of the Aggregate Investor AmountOutstanding Principal Amount of the Notes or, or if such failure cannot be cured within such 60-day period owing to causes beyond so long as no Insurer Default has occurred and is continuing, by the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; orInsurer;
(d) the entry of a decree or order for relief by a court or regulatory authority having jurisdiction in respect of the Servicer shall or the Seller in an involuntary case under the federal bankruptcy laws, as now or hereafter in effect, or another present or future, federal or state, bankruptcy, insolvency or similar law, or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Servicer or the Seller or of any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Servicer or the Seller and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the commencement of an involuntary case under the federal bankruptcy laws, as now or hereinafter in effect, or another present or future federal or state bankruptcy, insolvency or similar law and such case is not dismissed within 60 days;
(ae) become insolventthe commencement by the Servicer or the Seller of a voluntary case under the federal bankruptcy laws, (b) fail as now or hereafter in effect, or any other present or future, federal or state, bankruptcy, insolvency or similar law, or the consent by the Servicer or the Seller to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Servicer or the Seller or of any substantial part of its property or the making by the Servicer or the Seller of an assignment for the benefit of creditors or the failure by the Servicer or the Seller generally to pay its debts generally as they such debts become duedue or the taking of corporate action by the Servicer or the Seller in furtherance of any of the foregoing;
(f) any merger or consolidation or sale of assets of the Servicer in violation of the covenant set forth in Section 6.02 hereof;
(g) the Servicer shall have failed in the reasonable opinion of the Insurer to service the Contracts in accordance with the Servicing Standards and such failure shall have continued unremedied for 30 days after written notice of such failure shall have been delivered to the Servicer by the Insurer;
(h) any representation, warranty or statement of the Servicer or the Seller made in this Agreement or the other Basic Documents or any certificate, report or other writing delivered pursuant hereto or thereto shall prove to be incorrect in any material respect as of the time when the same shall have been made (c) voluntarily seekexcluding, consent tohowever, any representation or warranty made in this Agreement or any other Basic Document as to which Section 2.03 or 3.06 shall be applicable so long as the Servicer or the Seller shall be in compliance with Section 2.03 or 3.06, as the case may be), and the incorrectness of such representation, warranty or statement has a material adverse effect on the Noteholders or the Insurer and, within 30 days after written notice thereof shall have been given to the Servicer or the Seller by the Indenture Trustee or the Issuer or by Noteholders, acting together as a single Class, evidencing in the aggregate not less than 25% of the Outstanding Principal Amount of the Notes, or acquiesce so long as no Insurer Default has occurred, by the Insurer, the circumstance or condition in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured;
(i) the subservicing agreement between World Omni Financial Corp. and the Servicer shall for any reason cease to be in full force and a successor Subservicer acceptable to the Insurer shall not be appointed within 60 days, or if any party thereto denies that it has any further liability thereunder or gives notice to such effect;
(j) the Indenture Trustee shall, for any reason, fail to have a valid perfected first priority security interest in Contracts pledged by the Issuer to the Indenture Trustee the outstanding aggregate Principal Balance of which exceeds 5.00% of the Pool Balance;
(k) unless authorized under Section 5.02, the Seller shall enter into any transaction described in Section 5.02 regardless of the surviving entity; or
(l) an Event of Default as defined in the benefit or benefits of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, Insurance Agreement; then and in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; theneach and every case, so long as such Servicer Default shall not have been remedied, either (i) if no Insurer Default has occurred and is continuing, the TrusteeInsurer or (ii) if an Insurer Default has occurred and is continuing, or the Holders Indenture Trustee acting at the direction of Investor Certificates the Noteholders evidencing Undivided Interests aggregating not less than 5125% of the Aggregate Investor Amountoutstanding amount of the Notes, acting together as a single Class, by notice then given in writing to the Servicer (and to the Insurer, the Indenture Trustee and the Issuer if given by the Investor CertificateholdersNoteholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After Upon such termination, termination of the Servicer as custodian, if the Servicer is acting as such, can be made pursuant to Section 2.08. On or after the receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2written notice of termination, all authority and power of the Servicer under this Agreement shall Agreement, whether with respect to the Notes, the Contracts or otherwise, shall, without further action, pass to and be vested in a the Indenture Trustee or such Successor Servicer; Servicer as may be appointed under Section 7.02 and, without limitation, the Indenture Trustee is and the Issuer are hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of servicing rightsthe Contracts and related documents, or otherwise. The Servicer agrees to shall cooperate with the Trustee Indenture Trustee, the Insurer and such Successor Servicer the Issuer in effecting the termination transfer of the responsibilities and rights of the Servicer under this Agreement (whether due to conduct servicing hereundertermination, includingresignation or otherwise), without limitation, including the transfer to the Indenture Trustee or such Successor Servicer Servicer, as applicable, for administration by it of all authority of cash amounts that (i) shall at the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer time be held by the Servicer for depositdeposit in, or which shall have been deposited by the ServicerServicer in, in the Collection Account, the Finance Charge Account or, the Principal Account, or which (ii) shall thereafter be received by it with respect to the Receivables, and in assisting any Contract. The predecessor Servicer shall pay all costs of the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer associated with its electronic records relating transition to the Receivables to the role of Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer (whether due to the Successor Servicer all other recordstermination, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicerresignation or otherwise).
Appears in 1 contract
Samples: Sale and Servicing Agreement (Auto Nations Receivables Corp)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 Article IV or to instruct the Trustee to make a drawing any required drawing, withdrawal, or payment under any Letter of Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement Agreement; provided, however, that any such failure caused by a non- willful act of the Servicer shall not constitute a Servicer Default if the Servicer promptly remedies such failure within five Business Days after receiving notice of such failure or any Supplement; orotherwise becoming aware of such failure;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agreement, which has a material adverse effect on the Certificateholders, Investor Certificateholders of any Series and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Invested Amount of any Series materially adversely affected thereby and continues to materially adversely affect such Investor AmountCertificateholders for such period; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; or;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights Investor Certificateholders of the Certificateholders any Series and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Invested Amount of any Series materially adversely affected thereby and continues to materially adversely affect such Investor Amount, or if Certificateholders for such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuityperiod; or
(d) the Servicer shall (a) become insolventconsent to the appointment of a bankruptcy trustee or receiver or liquidator in any bankruptcy proceeding or any other insolvency, (b) fail readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or receiver or liquidator in any bankruptcy proceeding or any other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable insolvency or reorganization statute, consent to, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filingobligations; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate Investor Invested Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsrights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account orExcess Funding Account, the Interest Funding Account or the Principal Account, and any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, obligations under the Letter of Credit Enhancement with respect to any Series to the Successor Servicer. In connection with any service transfer, all reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the records, correspondence and other documents with respect to the Receivables and the other Trust Property to the Successor Servicer and amending this Agreement to reflect such succession as Successor Servicer pursuant to this Section 10.1 and Section 10.2 shall be paid by the Servicer (unless the Trustee is acting as the Servicer on a temporary basis, in which case the original Servicer shall be responsible therefor) upon presentation of reasonable documentation of such costs and expenses. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.1(a) for a period of five Business Days or under subsection 10.1(b) or (c) for a period of 60 days, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages, bank closings, communications outages, computer failure or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Enhancement Provider, the Transferor and the Holders of Investor Certificates with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Fingerhut Companies Inc)
Servicer Defaults. If The occurrence of any one or more of the following events (shall constitute a "Servicer Default") shall occur and be continuing:
(a) The Servicer or the Seller shall fail (i) to make when due any payment or deposit required hereunder, or (ii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (i) of this paragraph (a)) and such failure shall remain unremedied for five (5) Business Days following the earlier to occur of (A) written notice thereof by any Agent or the LC Issuer to the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit on or before the date occurring five Business Days after the date such payment, transfer, deposit or drawing or such instruction or notice is required to be made or givenSeller, as applicable, or (B) the case may be, under Servicer’s or the terms Seller’s actual knowledge of this Agreement or any Supplement; orsuch failure.
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; or
(c) any Any representation, warranty warranty, certification or certification statement made by the Servicer Seller, the Servicer, the Performance Guarantor or an Originator in this Agreement, any Supplement other Transaction Document or in any certificate other document delivered pursuant to this Agreement or any Supplement hereto shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failurewhen made or deemed made.
(i) The Seller, requiring the same to be remedied, shall have been given to the Servicer by or the Trustee, Performance Guarantor shall generally not pay its debts as such debts become due or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; or
(d) the Servicer shall (a) become insolvent, (b) fail admit in writing its inability to pay its debts generally as they become dueor shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Seller, (c) voluntarily seek, consent tothe Servicer or the Performance Guarantor seeking to adjudicate it bankrupt or insolvent, or acquiesce in seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the benefit entry of an order for relief or benefits the appointment of a receiver, trustee or other similar official for it or any Debtor Relief Lawsubstantial part of its property, or (ii) the Seller, the Servicer or the Performance Guarantor shall take any corporate action to authorize any of the actions set forth in clause (i) above in this subsection (c).
(d) become a party As at the end of any Calculation Period:
(i) the average of the Delinquency Ratios for each of the three consecutive Calculation Periods then most recently ended shall exceed 2.50%; THIRD AMENDED AND RESTATED RPA
(ii) the average of the Dilution Ratios for each of the three consecutive Calculation Periods then most recently ended shall exceed 9.50%; or
(iii) the average of the Default Ratios for each of the three consecutive Calculation Periods then most recently ended shall exceed 2.25%.
(1) Any Originator or the Performance Guarantor shall fail to perform or observe any term, covenant or agreement contained in any Transaction Document, or (or be made the subject ofii) any proceeding provided Originator shall for by any Debtor Relief Lawreason cease to transfer, other than or cease to have the legal capacity or otherwise be incapable of transferring, Receivables to the Seller, as a creditor purchaser under the Sale Agreement, or claimant, and, any “Event of Default” or “Potential Event of Default” shall occur under the Sale Agreement.
(f) The Effective Receivable Interest hereunder shall at any time exceed 100%.
(g) A Change of Control shall occur.
(h) A “Default” or an “Event of Default” under and as defined in the event such proceeding is involuntaryYRCW Credit Agreement, the petition instituting same is not dismissed within 90 days after its filingshall occur and be continuing; thenprovided, so long as such however, that any Servicer Default arising under this Section 7.1(h) shall not have been remediedbe deemed automatically waived if and to the extent that any “Default” or “Event of Default” under the YRCW Credit Agreement is waived in accordance with the terms thereof.
(i) Any Trigger Event shall occur.
(j) The Performance Undertaking shall cease to be effective or to be the legally valid, either binding and enforceable obligation of Performance Guarantor, or Performance Guarantor shall contest in any proceeding in any court or any mediation or arbitral proceeding such effectiveness, validity, binding nature or enforceability of its obligations thereunder.
(k) One or more final judgments shall be entered against Performance Guarantor or any of its Subsidiaries for the Trusteepayment of money in the aggregate amount of $15,000,000 or more, or the Holders of Investor Certificates evidencing Undivided Interests aggregating equivalent thereof in another currency, on claims not less than 51% of covered by insurance or as to which the Aggregate Investor Amountinsurance carrier has denied its responsibility, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement such judgment shall continue unsatisfied and in and effect for thirty (30) consecutive days without a stay of execution or bond to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicersecure appeal.
Appears in 1 contract
Servicer Defaults. If any one of the following events (each, a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit such payment, transfer or deposit on or before the date occurring five (5) Business Days after the date such payment, transfer, deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; orprovided, however, that any such failure caused by a nonwillful act of the Servicer shall not constitute a Servicer Default if the Servicer promptly remedies such failure within five (5) Business Days after receiving notice of such failure or otherwise becoming aware of such failure;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Supplement, which has a material adverse effect on the Certificateholders, Certificateholders of any Series then outstanding and which continues unremedied for a period of 60 sixty (60) days after the date on which the written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Trustee or by Investor Certificateholders evidencing interests aggregating more than 66 2/3% of the Invested Amounts of all Series, and which continues to materially adversely affect the rights of the Holders of Investor Certificates of any Series; the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders of any Series then outstanding and which continues to be incorrect in any material respect and which continues to affect materially and adversely the rights of the Certificateholders of any Series for a period of sixty (60) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 2550% of the Aggregate Investor Amount; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; or
(c) Invested Amount of any representation, warranty or certification made by the Servicer in this Agreement, any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuitySeries adversely affected thereby; or
(d) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (a60) become insolvent, (b) fail days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable insolvency or reorganization statute, consent to, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filingobligations; then, so long as such Servicer Default shall not have been remedied, either the Trustee, Trustee or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate Investor Invested Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof and appoint a new Servicer (other than its a "Service Transfer"). The rights and interest, if any, as Holder interests of the Exchangeable Certificate under this Agreement)Transferor Interest will not be affected by any Service Transfer. The Trustee, upon giving or receiving a Termination Notice shall immediately notify the Rating Agencies of such notice. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsRecoveries. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in Section 10.1(a) for a period of ten (10) Business Days after the applicable grace period or under Section 10.1(b) or (c) for a period of sixty (60) Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Enhancement Provider, the Transferor and the Holders of Investor Certificates with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations. The Servicer shall, on shall immediately notify the date Trustee in writing of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor ServicerServicer Default.
Appears in 1 contract
Samples: Master Pooling and Servicing Agreement (Yamaha Motor Receivables Corp)
Servicer Defaults. If any one of the following events (a "“Servicer Default"”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit on such payment, transfer or before the date occurring five Business Days after deposit by the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Servicing Agreement or the Indenture, and which continues unremedied for a period of five (5) Business Days after the date on which notice of such failure, requiring the same to be remedied, shall have been given by registered or certified mail to the Servicer by any SupplementCo-Issuer, any Loan Trustee, the Paying Agent or the Indenture Trustee, or to the Servicer, any Co-Issuer, any Loan Trustee, the Paying Agent and the Indenture Trustee by the Required Noteholders; or
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Servicing Agreement or any Supplement the Indenture, which failure has a material adverse effect on the Certificateholdersinterests of the Noteholders (as determined by the Required Noteholders), and which continues unremedied for a period of 60 sixty (60) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given by registered or certified mail to the Servicer by any Co-Issuer, any Loan Trustee, the Paying Agent or the Indenture Trustee, or to the Servicer Servicer, any Co-Issuer, any Loan Trustee, the Paying Agent and the Indenture Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7Required Noteholders; or
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Servicing Agreement or the Indenture or in any certificate delivered pursuant to this Servicing Agreement or any Supplement the Indenture shall prove to have been incorrect in any material respect when made or deemed made, which and such failure has a material adverse effect on the rights interests of the Certificateholders Noteholders (as determined by the Required Noteholders), and which continues to be incorrect in any material respect unremedied for a period of 60 thirty (30) days after the date on which written a notice of specifying such failure, incorrect representation or warranty and requiring the same to be remedied, shall have been given by registered or certified mail to the Servicer by any Co-Issuer, any Loan Trustee, the Paying Agent or the Indenture Trustee, or to the Servicer Servicer, any Co-Issuer, any Loan Trustee, the Paying Agent and the Indenture Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuityRequired Holders; or
(d) an Insolvency Event shall occur with respect to the Servicer shall (a) become insolvent, (b) fail to pay its debts generally as they become due, (c) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, andServicer; then, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenof any Servicer Default, so long as such a Servicer Default shall not have been remediedis continuing, either the Trustee, or Indenture Trustee may (and upon the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% written direction of the Aggregate Investor AmountRequired Noteholders shall), by notice then given in writing to the Servicer, the Co-Issuers, the Loan Trustees, the Paying Agent and the Back-up Servicer (and to the Trustee if given by the Investor Certificateholders) (a "“Termination Notice"”), may terminate all of the rights and obligations of the Servicer as Servicer under this Servicing Agreement and in and to the Receivables and Indenture. The existence of a Servicer Default may be waived with the proceeds thereof (other than its rights and interest, if any, as Holder consent of the Exchangeable Certificate under this Agreement)Required Noteholders. After receipt by the Servicer of such a Termination Notice, and effective on the date that a on which the Successor Servicer shall have been appointed by assumes the Trustee pursuant to Section 10.2servicing obligations hereunder, all authority and power of the Servicer under this Servicing Agreement shall pass to and be vested in the Successor Servicer (a “Successor ServicerServicing Transfer”) appointed by the Indenture Trustee pursuant to Section 5.02; and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperatecooperate promptly) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer Successor Servicing Transfer. Notwithstanding the receipt of the Servicer of a Termination Notice, the terminated Servicer shall, as provided in Section 5.02(a), continue to be bound to perform as Servicer in accordance with the terms of this Servicing Agreement until the Successor Servicer has assumed such servicing rightsobligations. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder and (ii) transferring all duties and obligations of the Servicer hereunder to such Successor Servicer, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service and administer the Receivables Loans provided for under this Servicing Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the ReceivablesLoans, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsServicer. The Servicer shall promptly work with the Successor Servicer to transfer to the Successor Servicer all its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer Loans, together with all other records, correspondence and documents necessary for the continued servicing and administration of the Receivables Loans in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that a Servicer Default gives rise to the Successor Servicing Transfer, the predecessor Servicer shall be responsible for all reasonable expenses incurred in transferring the servicing duties to the Successor Servicer; provided that Servicer shall be entitled to be reimbursed for all amounts to which Servicer is entitled pursuant to Section 2.02, and any other amounts owed to Servicer under this Servicing Agreement as of such termination date. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidentialconfidential or give the Successor Servicer access to software or other intellectual property, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. The Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above shall not constitute a Servicer shallDefault if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, on acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. If, following the expiration of the sixty (60)-day period in the case of a delay or failure of performance described in paragraph (b) above or the thirty (30)-day period in the case of a delay or failure of performance described in paragraph (c) above, the applicable delay or failure of performance remains outstanding but the Servicer continues to work diligently to remedy such delay or failure of performance, then Servicer shall have an additional thirty (30) days upon notice from the Servicer to the Indenture Trustee to attempt to recommence performance. If performance has not substantially resumed after such additional thirty (30) day period, then the Indenture Trustee may terminate the Servicer by written notice to the Servicer. Such notice shall specify the event upon which the termination is based. Termination under this paragraph shall be effective immediately upon delivery of the notice. Servicer shall not have any liability to any party as a consequence of any such termination, other than with respect to obligations accrued and unperformed as of the date of any servicing transfertermination. The preceding sentences shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Servicing Agreement and the Indenture and the Servicer shall provide the Indenture Trustee and the Co-Issuers with an Officer’s Certificate giving prompt notice of such failure or delay by it, transfer all together with a description of its rights and efforts so far to perform its obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 Article IV or to instruct the Trustee to make a drawing any required drawing, withdrawal, or payment under any Letter of Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement Agreement; provided, however, that any such failure caused by a non-willful act of the Servicer shall not constitute a Servicer Default if the Servicer promptly remedies such failure within five Business Days after receiving notice of such failure or any Supplement; orotherwise becoming aware of such failure;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agreement, which has a material adverse effect on the Certificateholders, Investor Certificateholders of any Series and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Invested Amount of any Series materially adversely affected thereby and continues to materially adversely affect such Investor Amount; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; orCertificateholders for such period;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights Investor Certificateholders of the Certificateholders any Series and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Invested Amount of any Series materially adversely affected thereby and continues to materially adversely affect such Investor Amount, or if Certificateholders for such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuityperiod; or
(d) the Servicer shall (a) become insolvent, (b) fail to pay its debts generally as they become due, (c) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% of the Aggregate Investor Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Green Tree Financial Corp)
Servicer Defaults. If The occurrence of any one or more of ----------------- the following events (shall constitute a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer shall fail to make any payment, transfer or deposit or instruct the Securities Intermediary to give instructions or notice remit to the Trustee pursuant Agent on any day any amount required to Section 4.5 be remitted to the Agent on such day in respect of Yield, Net Swap Amounts, Facility Fees or to make a drawing under any Letter of Credit on or before the date occurring five Capital and such failure shall continue for three (3) Business Days after the date when such payment, transfer, deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; oramounts became due;
(b) the Servicer shall fail to deposit, or fail to pay, or fail to cause to be deposited or paid when due any other amount due hereunder, and any such failure shall continue for five (5) Business Days after the earlier of the date on which it has actual knowledge thereof or the date on which it has received written notice thereof by the Agent to the Servicer;
(c) failure on the part of the Seller or the Servicer to duly to observe or perform in any material respect any other covenants or agreements of the Seller or the Servicer set forth in the Sale Agreement, this Agreement Agreement, or any Supplement which has a material adverse effect on of the Certificateholdersother Transaction Documents, which failure continues unremedied for a period of 60 thirty (30) days after the earlier of knowledge thereof or the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer Seller or the Servicer, as applicable, by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; orAgent;
(cd) any representation, warranty warranty, certification or certification statement made by the Servicer in under this Agreement, any Supplement Agreement or in any certificate delivered agreement, certificate, report, appendix, schedule or document furnished by the Seller or Servicer to the Agent pursuant to or in connection with this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders and which continues to be incorrect false or misleading in any material respect as of the time made or deemed made (including by omission of material information necessary to make such representation, warranty, certification or statement not misleading);
(e) the entry of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, receiver or liquidator for the Seller or the Servicer, in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding up or liquidation of their respective affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 days after consecutive days;
(f) the date on which written notice of such failure, requiring consent by the same to be remedied, shall have been given Seller or the Servicer to the Servicer by the Trusteeappointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities, or similar proceedings of or relating to the Seller or the Servicer and or of or relating to substantially all of their respective property; or the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, Seller or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; or
(d) the Servicer shall (a) become insolvent, (b) fail admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(cg) voluntarily seek, consent to, or acquiesce a default by the Servicer in the benefit or benefits performance of any Debtor Relief Lawterm, provision or (d) become a party to (or be made the subject of) condition contained in any proceeding provided for by agreement under which any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% of the Aggregate Investor Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations indebtedness of the Servicer as Servicer under this Agreement in excess of $10 million was created or is governed, the effect of which is to cause any such indebtedness to become due prior to its stated maturity; or any such indebtedness shall be declared to be due and in and payable or required to the Receivables and the proceeds thereof be prepaid (other than its rights and interest, if any, by a regularly scheduled payment or as Holder a result of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power voluntary sale or transfer of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperateproperty or assets) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect prior to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the stated maturity date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicerthereof.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Navistar Financial Retail Receivables Corporation)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement Agreement, the Indenture or any Indenture Supplement; or;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, an Adverse Effect and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2510% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Section 8.7; orSections 5.02 and 5.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect an Adverse Effect on the rights of the Certificateholders Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which Adverse Effect continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2510% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or if certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicerrepresentation, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuitywarranty or certification relates); or
(d) the Servicer shall (a) become insolventconsent to the appointment of a bankruptcy trustee, (b) fail conservator, receiver, liquidator or similar official in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee, conservator, receiver, liquidator or similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable bankruptcy, consent toinsolvency or reorganization statute, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, andits obligations; Then, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenof any Servicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "Termination Notice"), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer under this Agreement Agreement; provided, however, if within 60 days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with subsection 7.02(c) to act as a Successor Servicer and in and receives an Officer's Certificate of the Servicer to the Receivables and effect that the proceeds thereof (other than its rights and interestServicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, if any, as Holder the Indenture Trustee shall grant a right of first refusal to the Transferors which would permit the Transferors at their option to acquire the Notes on the Distribution Date in the next calendar month. The price for the Notes shall be equal to the sum of the Exchangeable Certificate under this Agreement)amounts specified therefor with respect to each outstanding Series in the related Indenture Supplement. The Transferors shall notify the Indenture Trustee prior to the Record Date for the Distribution Date of the acquisition if it is exercising such right of first refusal. If the Transferors exercise such right of first refusal, the Transferors shall deposit the price into the Collection Account not later than 1:00 p.m., New York City time, on such Distribution Date in immediately available funds. The price shall be allocated and distributed to Noteholders in accordance with the terms of the Indenture and each Indenture Supplement. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 10.27.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a Successor Servicer"Service Transfer"); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsServicer. The Servicer shall promptly within 20 Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. The Servicer shallshall pay to the Indenture Trustee and any Successor Servicer the reasonable transition expenses incurred by such person and the agents in connection with any transition of Servicing. Notwithstanding the foregoing, on a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the date applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, Owner Trustee, each Transferor and any servicing transferSeries Enhancer with an Officer's Certificate giving prompt notice of such failure or delay by it, transfer all together with a description of its rights and efforts so to perform its obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Conseco Finance Credit Funding Corp)
Servicer Defaults. If any one of the following events (a "“Servicer Default"”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit on or before the date occurring five Business Days after the date such payment, transfer, deposit deposit, withdrawal or drawing or such instruction or notice is required to be made or givengiven by the Servicer, as the case may be, under the terms of this Agreement or any Supplement; or;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agreement, which has a material adverse effect on the Certificateholders, Noteholders of any Series and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, Issuer (or to the Servicer and the Indenture Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% on behalf of the Aggregate Investor Amount; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; orIssuer);
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders Issuer or Noteholders and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuityIssuer; or
(d) an Insolvency Event with respect to the Servicer shall (a) become insolvent, (b) fail to pay its debts generally as they become due, (c) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; have occurred: then, so long as such Servicer Default shall not have been remedied, either the TrusteeIssuer may, or if directed by the Holders Indenture Trustee (acting at the direction of Investor Certificates evidencing Undivided Interests aggregating Noteholders of not less than 5166 2/3% of the Aggregate Investor AmountOutstanding Dollar Principal Amount of the Notes for all Series), by delivery of a written notice then given in writing of termination to the Servicer (and to the Trustee if given by the Investor Certificateholders) Issuer (a "“Termination Notice"”), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee Issuer pursuant to Section 10.25.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee Issuer is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsrights and obligations. The Servicer agrees to cooperate with the Trustee Issuer and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections Table of Contents which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds, Recoveries and Interchange (if any) applicable to the Issuer. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 5.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 5.01(a) for a period of 10 additional Business Days or under subsection 5.01(b) or (c) for a period of 60 additional Business Days, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer shallfrom using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Issuer with an Officer’s Certificate of the Servicer giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations. For the avoidance of doubt, the determination of a Servicer Default shall be based solely on the date provisions in this Section 5.01 and the occurrence of any a material instance of noncompliance with the applicable servicing transfer, transfer all criteria specified in Item 1122(d) of its rights and obligations, if any, under the Letter of Credit to the Successor ServicerRegulations AB shall not be determinative that a Servicer Default has occurred.
Appears in 1 contract
Servicer Defaults. If any one of the following events (a "“Servicer Default"” ) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement the Indenture or any Indenture Supplement; or;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, an Adverse Effect and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2510% or more of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes (or, with respect to any such failure that does not relate to all Series, 10% or more of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Section 8.7; orSections 5.02 and 5.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect an Adverse Effect on the rights of the Certificateholders Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which Adverse Effect continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2510% or more of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or if certification that does not relate to all Series, 10% or more of the aggregate unpaid principal amount of all Series to which such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicerrepresentation, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuitywarranty or certification relates); or
(d) the Servicer shall (a) become insolventconsent to the appointment of a bankruptcy trustee, (b) fail conservator, receiver, liquidator or similar official in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee, conservator, receiver, liquidator or similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable bankruptcy, consent toinsolvency or reorganization statute, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, andits obligations; then, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenof any Servicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "“Termination Notice"” ), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer under this Agreement Agreement; provided, however, if within 60 days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with subsection 7.02(c) to act as a Successor Servicer and in and receives an Officer’s Certificate of the Servicer to the Receivables and effect that the proceeds thereof (other than Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall grant a right of first refusal to the Transferor which would permit the Transferor at its rights and interest, if any, as Holder option to acquire the Notes on the Distribution Date in the next calendar month. The price for the Notes shall be equal to the sum of the Exchangeable Certificate under this Agreement)amounts specified therefor with respect to each outstanding Series in the related Indenture Supplement. The Transferor shall notify the Indenture Trustee prior to the Record Date for the Distribution Date of the acquisition if it is exercising such right of first refusal. If the Transferor exercises such right of first refusal, the Transferor shall deposit the price into the Collection Account not later than 1:00 p.m., New York City time, on such Distribution Date in immediately available funds. The price shall be allocated and distributed to Noteholders in accordance with the terms of the Indenture and each Indenture Supplement. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 10.27.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a Successor Servicer“Service Transfer” ); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsServicer. The Servicer shall promptly within 20 Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. The Servicer shallshall pay to the Indenture Trustee and any Successor Servicer the reasonable transition expenses incurred by such person and the agents in connection with any transition of Servicing. Notwithstanding the foregoing, on a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the date applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, acts of terrorism, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, Owner Trustee, each Transferor and any servicing transferSeries Enhancer with an Officer’s Certificate giving prompt notice of such failure or delay by it, transfer all together with a description of its rights and efforts so to perform its obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (HSBC Private Label Credit Card Master Note Trust (Usa) I)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 the terms of this Agreement or to make a drawing under any Letter of Credit Supplement on or before the date occurring five Business Days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; or;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, interests hereunder of the Investor Certificateholders of any Series or Class and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 2550% of the Aggregate Investor AmountInvested Amount (or, with respect to any such failure that does not relate to all Series, 50% of the aggregate Invested Amount of all Series to which such failure relates); or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; orSections 8.02 or 8.07, a Responsible Officer of the Trustee has actual knowledge of such delegation and such delegation continues unremedied for 15 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing more than 50% of the Aggregate Invested Amount;
(c) any representation, warranty or certification made by the Servicer in this Agreement, Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series or Class and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 2550% of the Aggregate Investor AmountInvested Amount (or, with respect to any such representation, warranty or if certification that does not relate to all Series, 50% of the Aggregate Invested Amount of all Series to which such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicerrepresentation, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuitywarranty or certification relates); or
(d) the Servicer shall (a) become insolventconsent to the appointment of a conservator 75 84 or receiver or liquidator in any insolvency, (b) fail readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable insolvency or reorganization statute, consent to, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, andits obligations; then, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenof any Servicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, Trustee or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate Investor Invested Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer under this Agreement Agreement; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with subsection 10.02(c) to act as a Successor Servicer and in and receives an Officer's Certificate of the Servicer to the Receivables effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall offer the Transferor the right at its option to purchase the Certificateholders' Interest on the Distribution Date next succeeding 60 days after the receipt by the Servicer of a Termination Notice. The purchase price for the Certificateholders' Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Transferor shall notify the Trustee in writing prior to the Record Date for the Distribution Date of the purchase if it is exercising such option. If the Transferor exercises such option, the Transferor shall deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the proceeds thereof (other than its rights and interest, if any, as Holder terms of the Exchangeable Certificate under this Agreement)each Supplement. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.210.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicer.the
Appears in 1 contract
Servicer Defaults. If any one of the following events (each, a "“Servicer Default"”) shall occur and be continuing:
(a) any failure by the Servicer to deliver to the related Trustee for deposit in any of the Accounts or the Certificate Distribution Account any required payment or to direct the Indenture Trustee to make any paymentrequired distributions therefrom, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 or to make which failure continues unremedied for a drawing under any Letter period of Credit on or before the date occurring five three Business Days after discovery of such failure by an officer of the Servicer or after the date on which written notice of such paymentfailure, transfer, deposit or drawing or such instruction or notice is required requiring the same to be made remedied, shall have been given (i) to the Servicer by the related Trustee or given(ii) to the Servicer and to the Trustees by the Holders of Notes, as evidencing not less than 25% of the case may be, under Outstanding Amount of the terms of this Agreement or any Supplement; orNotes;
(b) failure on the part of by the Servicer (or so long as the Servicer is AHFC, the Seller) duly to observe or to perform in any material respect any other covenants or agreements of the Servicer (or so long as the Servicer is AHFC, the Seller) set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholdersother Basic Document, which continues failure shall (i) materially and adversely affect the rights of Certificateholders or Noteholders and (ii) continue unremedied for a period of 60 90 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given (A) to the Servicer or the Seller (as the case may be) by the Trustee, related Trustee or (B) to the Servicer or the Seller (as the case may be), and to the related Trustee by the Holders of Investor Certificates Notes, evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; Outstanding Amount of the Notes;
(c) the occurrence of an Insolvency Event with respect to the Seller or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7Servicer; or
(cd) any representationfailure by the Servicer, warranty any Subservicer or certification made any Subcontractor to deliver any information, report, certification, attestation or accountants’ letter when and as required (including, without limitation, any failure by the Servicer to identify any Subcontractor “participating in this Agreement, any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when madethe servicing function” within the meaning of Item 1122 of Regulation AB), which has a material adverse effect on the rights of the Certificateholders and which continues to be incorrect in any material respect unremedied for a period of 60 [ten] calendar days after the date on which written notice of such failureinformation, requiring the same report, certification or accountants’ letter was required to be remedieddelivered then, shall have been given to and in each and every case, other than in the case of a Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; or
Default set forth in clause (d) the Servicer shall (a) become insolvent, (b) fail to pay its debts generally as they become due, (c) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenabove, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 5125% of the Aggregate Investor AmountOutstanding Amount of the Notes (or, if the Notes have been paid in full and the Indenture has been discharged in accordance with its terms, by holders of Certificates evidencing not less than 25% of the Percentage Interests) by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "Termination Notice"), may terminate all the rights and obligations (other than the obligations set forth in Section 6.02 that accrued on or prior to the effective date of the termination) of the Servicer under this Agreement. In the case of a Servicer Default set forth in clause (d) above, so long as the Servicer Default shall not have been remedied, the Issuer (or the Administrator, acting on behalf of the Issuer) shall be entitled to terminate, in its sole discretion, the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate servicer under this Agreement). After receipt by ; provided that to the extent that any provision of this Agreement expressly provides for the survival of certain rights or obligations following termination of the Servicer as servicer, such provision shall be given effect; provided, however, that the Issuer shall not be entitled to terminate the rights and obligations of the Servicer pursuant to this section if a failure of the Servicer to identify a Subcontractor “participating in the servicing function” within the meaning of Item 1122 of Regulation AB was attributable solely to the role or functions of such Termination Notice, and on Subcontractor with respect to receivables other than the Receivables. On or after the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2specified in such written notice, all authority and power of the Servicer under this Agreement shall Agreement, whether with respect to the Notes, the Certificates or the Receivables or otherwise, shall, without further action, pass to and be vested in a the Indenture Trustee or such Successor ServicerServicer as may be appointed under Section 7.02; and, without limitation, the Indenture Trustee is and the Owner Trustee are hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf for the benefit of the predecessor Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of servicing rightsthe Receivables and related documents, or otherwise. The predecessor Servicer agrees to shall cooperate with the Trustee and such Successor Servicer and the Trustees in effecting the termination of the responsibilities and rights of the predecessor Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, including the transfer to the Successor Servicer for administration by it of all authority over all Collections which cash amounts that shall on at the date of transfer time be held by the predecessor Servicer for deposit, or which have been deposited by the predecessor Servicer, in the Collection Account, Accounts or the Finance Charge Certificate Distribution Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, Receivables and all Payments Ahead that shall at that time by held by the predecessor Servicer. All reasonable costs and expenses (including servicer conversion costs and attorneys’ fees) incurred in assisting connection with transferring the Receivable Files to the Successor Servicer and amending this Agreement to reflect such succession as Servicer pursuant to this Section shall be paid by the predecessor Servicer upon presentation of reasonable documentation of such costs and expenses. Any costs or expenses incurred in enforcing all rights to Insurance Proceeds. The connection with a Servicer Default shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing constitute an expense of administration under Title 11 of the Receivables in United States Bankruptcy Code or any other applicable Federal or State bankruptcy laws. Upon receipt of notice of the manner and at such times as the Successor occurrence of a Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidentialDefault, the Successor Servicer Indenture Trustee shall be required give notice thereof to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicereach Rating Agency.
Appears in 1 contract
Samples: Sale and Servicing Agreement (American Honda Receivables Corp)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 the terms of this Agreement or to make a drawing under any Letter of Credit Supplement on or before the date occurring five Business Days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; or;
(b) failure on the part of the Servicer to duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, interests hereunder of the Investor Certificateholders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate aggregate unpaid principal amount of all Investor AmountCertificates (or, with respect to any such failure that does not relate to all Series, 25% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall delegate its duties under this Agreement, except as permitted by Section Sections 8.2 and 8.7; or, a Responsible Officer of the Trustee has actual knowledge of such delegation and such delegation continues unremedied for 15 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 25% of the aggregate unpaid principal amount of all Investor Certificates;
(c) any representation, warranty or certification made by the Servicer in this Agreement, Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Enhancement) and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate aggregate unpaid principal amount of all Investor AmountCertificates (or, with respect to any such representation, warranty or if certification that does not relate to all Series, 25% of the aggregate unpaid principal amount of all Series to which such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicerrepresentation, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuitywarranty or certification relates); or
(d) the Servicer shall (a) become insolventfail generally to, (b) fail to or admit in writing its inability to, pay its debts generally as they become due, (c) voluntarily seek, consent to, ; or acquiesce a proceeding shall have been instituted in a court having jurisdiction in the benefit premises seeking a decree or benefits order for relief in respect of the Servicer in an involuntary case under any Debtor Relief Law, or (d) become for the appointment of a party to (receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or be made other similar official of such Person or for any substantial part of its property, or for the subject of) winding-up or liquidation of its affairs and, if instituted against the Servicer, any such proceeding provided shall continue undismissed or unstayed and in effect, for a period of 60 consecutive days, or any of the actions sought in such proceeding shall occur; or the commencement by the Servicer, of a voluntary case under any Debtor Relief Law, or such Person's consent to the entry of an order for relief in an involuntary case under any Debtor Relief Law, or consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or other than as a creditor similar official of such Person or claimantfor any substantial part of its property, andor any general assignment for the benefit of creditors; or such Person or any subsidiary of such Person shall have taken any corporate action in furtherance of any of the foregoing actions; then, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenof any Servicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, Trustee or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate aggregate unpaid principal amount of all Investor AmountCertificates, by notice then given in writing to the Servicer (and to the Trustee and any Enhancement Provider entitled thereto pursuant to the relevant Supplement if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of but not less than all the rights and obligations of the Servicer Servicer, as Servicer Servicer, under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interestthereof; provided, however, if any, within 60 days of receipt of a Termination Notice the Trustee is unable to obtain any bids from Eligible Servicers in accordance with subsection 10.2(c) to act as Holder a Successor Servicer and receives an Officer's Certificate of the Exchangeable Certificate under this Agreement)Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall offer the Transferor the right at its option to purchase the Certificateholders' Interest and the interest in the Trust Assets represented by any Participation on the Distribution Date occurring in the next calendar month. The purchase price for the Certificateholders' Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Transferor shall notify the Trustee prior to the Record Date for the related Distribution Date of the purchase if it is exercising such option. If it exercises such option, the Transferor shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Transferor, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a Successor Servicer"Service Transfer"); and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such the Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such the Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary appropriate to protect its interestinterests. Notwithstanding the foregoing, any delay in or failure of performance under subsection 10.1(a) for a period of five Business Days or under subsection 10.1(b) or (c) for a period of 60 days (in addition to any period provided in subsection 10.1(a), (b) or (c)) shall not constitute a Servicer Default until the expiration of such additional five Business Days or 60 days, respectively, if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer shallfrom the obligation to use its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and any Supplement and the Servicer shall provide the Trustee, on each Rating Agency, any Enhancement Provider entitled thereto pursuant to the date relevant Supplement, the Holder of any servicing transferthe Transferor Certificate and the Investor Certificateholders with an Officer's Certificate giving immediate notice of such failure or delay by it, transfer all together with a description of its rights and efforts to so perform its obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Target Receivables Corp)
Servicer Defaults. If any one of the following events (a ----------------- "Servicer Default") shall occur and be continuing:: -----------------
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 Article IV or to instruct the Trustee to make a drawing any required drawing, ---------- withdrawal, or payment under any Letter of Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; orAgreement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agreement, which has a material adverse effect on the Certificateholders, Certificateholders of any Series (which determination shall be made without regard to whether funds are available to the Certificateholders of any Series under any applicable Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by (i) the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Investor AmountInterest of any Series adversely affected thereby or (ii) to the extent provided in any Supplement by the related Enhancement Provider, and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; or-----------
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights Certificateholders of any Series (which determination shall be made without regard to whether funds are available to the Certificateholders of any Series under any applicable Enhancement) and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by (i) the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Investor AmountInterest of any Series adversely affected thereby or (ii) to the extent provided in any Supplement by the related Enhancement Provider, or if and continues to materially adversely affect such failure cannot be cured within Investor Certificateholders for such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuityperiod; or
(d) the Servicer shall (a) become insolventconsent to the appointment of a conservator or receiver or liquidator in any insolvency, (b) fail readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable insolvency or reorganization statute, consent to, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filingobligations; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate Investor AmountInterest, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the ------------------ rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this ------------ Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsrights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account orExcess Funding Account, the Principal and any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsRecoveries and Interchange allocable to the Trust. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to ------------ disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferrable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Accounts and the Receivables; provided, however, that such software shall be used by the -------- ------- Successor Servicer solely for the purposes of servicing the Accounts and the Receivables. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, obligations under the Letter of Credit Enhancement with respect to any Series to the Successor Servicer.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Peoples Bank Credit Card Master Trust)
Servicer Defaults. If any one of the following events (a ----------------- "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 Article IV or to make a drawing any required drawing, withdrawal, or payment under any Letter of Credit Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit deposit, withdrawal or drawing drawing, or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any SupplementAgreement; or
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, which continues unremedied for a period of 60 days after the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Investor AmountAmount of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate Servicer's delegation of its duties under this Agreement, Agreement except as permitted by Section 8.7; or
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Investor AmountAmount of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of the Servicer, if the Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; or
(d) the Servicer shall (a) become insolvent, (b) fail to pay its debts generally as they become due, (c) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 60 days after its filing; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate Investor Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement)thereof. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, including without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the any Collection Account, the Finance Charge Account or, the Principal or Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter in respect of Credit any Enhancement to the Successor Servicer.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Spiegel Credit Corp Iii)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions advice or notice to the Receivables Trustee pursuant to Section 4.5 an agreed schedule of collections and allocations or to advise the Receivables Trustee to make a drawing under any Letter of Credit required drawing, withdrawal, or payment pursuant to the Transaction Documents on or before the date occurring five Business Days after the date such payment, transfer, deposit deposit, withdrawal or drawing or such instruction advice or notice is required to be made or given, as the case may be, under the terms of this Agreement Deed or any Supplement; orTransaction Document;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement Deed or any Supplement Transaction Document which has a material adverse effect Material Adverse Effect on the Certificateholdersinterests of the Investor Beneficiaries of any Outstanding Issuance and which failure, which if capable of remedy, continues unremedied for a period of 60 days or more after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Receivables Trustee, or to the Servicer and the Receivables Trustee by the Holders of an Investor Certificates evidencing Undivided Interests aggregating not less than 25% Beneficiary or Investor Beneficiaries holding 50 per cent. or more of the Aggregate Investor Amount; or Interests in respect of any Outstanding Issuance adversely affected thereby and continues to have a Material Adverse Effect on the interests of such Investor Beneficiary in respect of such Outstanding Issuance for such period;
(c) delegation by the Servicer shall delegate of its duties under this AgreementDeed to any other entity, except as permitted by Section 8.7; orClause 10.6;
(cd) any relevant representation, warranty or certification made by the Servicer in this Agreement, any Supplement Deed or in any certificate delivered pursuant to this Agreement or any Supplement shall prove hereto proves to have been incorrect when made, which has a material adverse effect Material Adverse Effect on the rights interests of the Certificateholders Investor Beneficiaries in respect of any Outstanding Issuance and which continues to be incorrect in any material respect for a period of 60 days or more after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, Receivables Trustee or to the Servicer and the Receivables Trustee by the Holders of an Investor Certificates evidencing Undivided Interests aggregating not less than 25% Beneficiary or Investor Beneficiaries holding 50 per cent. or more of the Aggregate Investor Amount, or if Interest in respect of any Outstanding Issuance adversely affected thereby and continues to have a Material Adverse Effect on the interests of an Investor Beneficiary in respect of any Outstanding Issuance affected for such failure cannot be cured within such 60-day period owing to causes beyond period;
(e) the control of Servicer, if Servicer shall fail consent to proceed promptly or take any corporate action relating to cure the same appointment of a receiver, administrator, administrative receiver, liquidator, trustee or similar officer of it or relating to all or substantially all of its revenues and thereafter prosecute assets or proceedings are initiated against the curing Transferor under any applicable liquidation, insolvency, composition, re- organisation or similar laws for its winding-up, dissolution, administration or re- organisation (except for a solvent re-organisation) and such proceedings are not discharged within 60 days or a receiver, administrator, administrative receiver, liquidator, trustee or similar officer of it or relating to all or substantially all of its revenues and assets is legally and validly appointed and such failure with diligence and continuityappointment is not discharged within 14 days; or
(df) a director of the Servicer shall (a) become insolvent, (b) fail admit in writing that the Servicer is unable to pay its debts generally as they become due, (cfall due within the meaning of Section 123(1) voluntarily seek, consent to, of the Insolvency Act 1986 or acquiesce in the Servicer makes a general assignment for the benefit of or benefits a composition with its creditors or voluntarily suspends payment of any Debtor Relief Lawits obligations with a view to the general readjustment or rescheduling of its indebtedness, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; then, then so long as such Servicer Default shall not have been remedied, either the Receivables Trustee, if directed by the Investor Beneficiaries, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less Beneficiaries representing in aggregate more than 51662/3% of the Combined Aggregate Investor AmountInterest, in each case by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Servicer Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and Deed. Notwithstanding the foregoing, a delay in and or failure of performance referred to in paragraph (a) above for a period of 10 London Business Days or under paragraph (b), (c) or (d) for a period of 60 London Business Days (in addition to any period provided in (a) to (d) above) shall not constitute a Servicer Default if such delay or failure could not have been prevented by the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder exercise of the Exchangeable Certificate under this Agreement). After receipt reasonable diligence by the Servicer and such delay or failure was caused by an act of such Termination NoticeGod, and on the date that a Successor Servicer acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power cuts or similar causes. The preceding sentence shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of not relieve the Servicer under this Agreement shall pass from using reasonable efforts to and be vested perform its obligations in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate timely manner in accordance with the Trustee terms of this Deed and such Successor Servicer in effecting the termination of the responsibilities any Transaction Document and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary provide the Receivables Trustee with an Officer's Certificate (copied to protect any Enhancement Provider, the Transferor and each Investor Beneficiary) giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its interest. The Servicer shall, on the date of any servicing transfer, transfer all of efforts so to perform its rights and obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:“Servicer
(a) any failure by the Servicer to make any payment, transfer or deposit or to give notice or instructions or notice to the Indenture Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit required withdrawal or payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer, deposit or drawing or such instruction or notice Servicer is required to be made or given, as the case may be, do so under the terms of this Agreement Agreement, the Indenture or any Indenture Supplement; or, or within the applicable grace period, which will not exceed 35 Business Days;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect an Adverse Effect on the CertificateholdersNoteholders of any Series, Class or Tranche and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the Collateral Agent or to the Servicer Servicer, the Owner Trustee, the Indenture Trustee and the Trustee Collateral Agent by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Investor Amountaggregate unpaid principal amount of all Series, Classes or Tranches of Notes sustaining such Adverse Effect; or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Section 8.7; orSections 7.02, 7.05 and 7.06;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect an Adverse Effect on the rights of the Certificateholders Noteholders of any Series, Class or Tranche and which Adverse Effect continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the Collateral Agent, or to the Servicer Servicer, the Owner Trustee, the Indenture Trustee and the Trustee Collateral Agent by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Investor Amountaggregate unpaid principal amount of all Series, Classes or if Tranches of Notes to which such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicerrepresentation, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; orwarranty or certification relates;
(d) the Servicer shall (a) become insolventconsent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, (b) fail readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding- up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable bankruptcy, consent toinsolvency or reorganization statute, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or its obligations; or
(d) become a party to (or be made the subject ofe) any proceeding provided for by other Servicer Default described in any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filingIndenture Supplement; then, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate Investor Amountaggregate unpaid principal amount of all affected Notes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "“Termination Notice"”), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer under this Agreement Agreement; provided, however, if within 60 days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with subsection 10.02(a) to act as a Successor Servicer and in and receives an Officer’s Certificate of the Servicer to the Receivables and effect that the proceeds thereof (other than its rights and interestServicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, if any, as Holder the Indenture Trustee shall assume the role of the Exchangeable Certificate under this Agreement)Successor Servicer. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 10.210.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a Successor Servicer; “Service Transfer”) and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables Collateral provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the ReceivablesCollateral, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsProceeds and Interchange (if any) applicable to the Trust. The Servicer shall promptly within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables Collateral in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer shallfrom using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, on the date Owner Trustee, the Collateral Agent and the Transferor with an Officer’s Certificate giving prompt notice of any servicing transfersuch failure or delay by it, transfer all together with a description of its rights and efforts so to perform its obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Transfer and Servicing Agreement
Servicer Defaults. If any one of the following events (a "“Servicer Default"”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 Article IV or to instruct the Trustee to make a drawing any required drawing, withdrawal, or payment under any Letter of Credit on or before the date occurring five Enhancement, in each case, within one Business Days Day after the date of the receipt by the Servicer of written notice from the Trustee or any Purchaser Representative that such payment, transfer, deposit deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement Agreement, any Supplement or any Supplement; orReceivables Purchase Agreement;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement Agreement, any Supplement or any Supplement Receivables Purchase Agreement, which has a material adverse effect on (i) the CertificateholdersServicer’s ability to collect the Receivables or otherwise perform its obligations under the Agreement, any Supplement or any Receivables Purchase Agreement or (ii) the collectibility or value of the Receivables, and which continues unremedied for a period of 60 45 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, a Purchaser Representative or an Enhancement Provider, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor AmountInterest of any Certificate Series, or an Enhancement Provider and such material adverse effect continues for such period; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; or;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement or any Receivables Purchase Agreement or in any certificate delivered pursuant to this Agreement Agreement, any Supplement or any Supplement Receivables Purchase Agreement shall prove to have been incorrect when made, which has a material adverse effect on (i) the rights Servicer’s ability to collect the Receivables or otherwise perform its obligations under the Agreement, any Supplement or any Receivables Purchase Agreement or (ii) the collectibility or value of the Certificateholders Receivables, and which continues to be incorrect in any material respect for a period of 60 45 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, a Purchaser Representative, or an Enhancement Provider or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, Interest of any Certificate Series or if an Enhancement Provider and such failure cannot be cured within material adverse effect continues for such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuityperiod; or
(d) the Servicer shall (a) become insolventconsent to the appointment of a conservator or receiver or liquidator in any insolvency, (b) fail readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, commence or have commenced against it (cunless dismissed within thirty days) voluntarily seekas debtor a proceeding under any applicable insolvency or reorganization statute, consent to, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filingobligations; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Trust Interests and Purchaser Representatives of Receivables Purchase Series aggregating not less more than 5166-2/3% of the Aggregate Investor AmountInvestor/Purchaser Interest, by notice then given in writing to the Servicer Servicer, and each Purchaser Representative (and to the Trustee if given by the Investor CertificateholdersCertificateholders or the Purchaser Representatives) (a "“Servicer Termination Notice"”), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder Agreement. The Trustee shall promptly notify any Enhancement Provider of the Exchangeable Certificate under this Agreement)any such Servicer Default. After receipt by the Servicer of such Servicer Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsrights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal or any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsProceeds applicable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, obligations under the Letter of Credit any Enhancement with respect to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.1(a), for a cumulative period of ten Business Days, or under subsection 10.1(b) or (c), for a cumulative period of sixty Business Days, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Enhancement Provider, the Seller, and each Purchaser Representative with an Officer’s Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Alliance Data Systems Corp)
Servicer Defaults. If any one of the following events (a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give notice or instructions or notice to the Indenture Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit required withdrawal or payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer, deposit or drawing or such instruction or notice Servicer is required to be made or given, as the case may be, do so under the terms of this Agreement Agreement, the Indenture or any Indenture Supplement; or, or within the applicable grace period, which will not exceed 35 Business Days;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect an Adverse Effect on the CertificateholdersNoteholders of any Series, Class or Tranche and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer Servicer, the Owner Trustee, the Indenture Trustee and the Trustee applicable Collateral Agent by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Section 8.7; orSections 7.02, 7.05 and 7.06;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect an Adverse Effect on the rights of the Certificateholders Noteholders of any Series, Class or Tranche and which Adverse Effect continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer Servicer, the Owner Trustee, the Indenture Trustee and the Trustee applicable Collateral Agent by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or if certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicerrepresentation, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; orwarranty or certification relates);
(d) the Servicer shall (a) become insolventconsent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, (b) fail readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable bankruptcy, consent toinsolvency or reorganization statute, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or its obligations; or
(d) become a party to (or be made the subject ofe) any proceeding provided for by other Servicer Default described in any Debtor Relief Law, other than as a creditor or claimant, andIndenture Supplement. Then, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenof any Servicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate Investor Amountaggregate unpaid principal amount of all affected Notes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "Termination NoticeTERMINATION NOTICE"), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer under this Agreement Agreement; PROVIDED, HOWEVER, if within 60 days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with subsection 10.02(a) to act as a Successor Servicer and in and receives an Officer's Certificate of the Servicer to the Receivables and effect that the proceeds thereof (other than its rights and interestServicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, if any, as Holder the Indenture Trustee shall assume the role of the Exchangeable Certificate under this Agreement)Successor Servicer. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 10.210.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a Successor Servicer; "SERVICE TRANSFER") and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables Collateral provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, Account for 74 the Finance Charge Account or, the Principal Accountapplicable Asset Pool, or which shall thereafter be received with respect to the ReceivablesCollateral, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsProceeds and Interchange (if any) applicable to the Trust. The Servicer shall promptly within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables Collateral in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer shallfrom using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, on the date Owner Trustee, the applicable Collateral Agent and each Transferor with an Officer's Certificate giving prompt notice of any servicing transfersuch failure or delay by it, transfer all together with a description of its rights and efforts so to perform its obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (First Usa Credit Card Master Trust)
Servicer Defaults. If any one Any of the following events (shall constitute a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer in its capacity as Servicer to make any payment, transfer or deposit required by any Transaction Document to be made by it or to give instructions or to give notice to the Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit on or before the date occurring five Business Days after the date such payment, transfertransfer or deposit, deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; orwhich failure continues unremedied for three Business Days,
(b) failure on the part of the Servicer in its capacity as Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement other Transaction Document, which failure has a material adverse effect on the Certificateholders, which Holders of any Series or Purchased Interest and continues unremedied for a period of 60 30 days after the date on which written notice of such the failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by any Investor Certificateholder or Purchaser or, subject to the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% prior written approval of the Aggregate Investor Amount; or the Required Series Holders for each outstanding Series, Transferor,
(c) Servicer shall delegate assign its duties under this Agreement, except as permitted by Section 8.7; orSections 3.1(b) and 8.3,
(cd) any Daily Report or Monthly Report shall fail to have been correct in any material respect when made or delivered, or shall not have been delivered when required under the terms hereof, and in either case such condition continues unremedied for a period of three Business Days; or any other representation, warranty or certification made by the Servicer in this Agreement, any Supplement Transaction Document or in any certificate or other document or instrument delivered pursuant to this Agreement or any Supplement Transaction Document shall prove fail to have been incorrect correct in any material respect when mademade or delivered, which failure has a material materially adverse effect on the rights of the Certificateholders or any Purchased Interest and which materially adverse effect continues to be incorrect in any material respect unremedied for a period of 60 days 15 Business Days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, Trustee or to the Servicer and the Trustee by any Investor Certificateholder or Purchaser or, subject to the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% prior written approval of the Aggregate Investor AmountRequired Series Holders for each outstanding Series, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of ServicerTransferor, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; or
(de) any Bankruptcy Event shall occur with respect to Servicer. In the Servicer shall (a) become insolvent, (b) fail to pay its debts generally as they become due, (c) voluntarily seek, consent to, or acquiesce in the benefit or benefits event of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenServicer Default, so long as such Servicer Default shall not have been remedied, either Transferor shall, at the Trustee, direction of the Trustee or the Required Series Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% of the Aggregate Investor Amountfor each outstanding Series, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of (but not less than all) the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables Receivables, the Related Transferred Assets and the proceeds thereof (other than its rights and interest, if any, thereof. As soon as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivablespossible, and in assisting any event within five Business Days, after an Authorized Officer of Servicer has obtained knowledge of the Successor occurrence of any Servicer Default, Servicer shall furnish Transferor, Trustee, each Agent and the Rating Agencies, and Trustee shall promptly furnish each Investor Certificateholder, notice of such Servicer Default. Notwithstanding the foregoing, a delay in or failure in performance referred to in subsection (a) for a period of ten Business Days after the applicable grace period, or in subsection (b) or (d) for a period of 30 Business Days after the applicable grace period, shall not constitute a Servicer Default if the delay or failure could not have been prevented by the exercise of reasonable diligence by Servicer and in enforcing all rights to Insurance Proceedsthe delay or failure was caused by an act of God or the public enemy, riots, acts of war, acts of terrorism, epidemics, flood, embargoes, weather, landslides, fire, earthquakes or similar causes. The preceding sentence shall not relieve Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of the Transaction Documents, and Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request give Transferor, Trustee, each Agent and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all Transferor an Officer's Certificate notifying them of its rights and obligations, if any, under the Letter of Credit to the Successor Servicerfailure or delay.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Big Flower Press Holdings Inc)
Servicer Defaults. If any one of the following events (a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 Article IV or to instruct the Trustee to make a drawing any required drawing, withdrawal, or payment under any Letter of Credit Enhancement on or before the date occurring five two Business Days after the date such payment, transfer, deposit deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; or(PROVIDED, that with respect to payments to the Investor Certificateholders of Invested Amounts, such two Business Day grace period shall not apply);
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agreement, which has a material adverse effect on the Certificateholders, Investor Certificateholders of any Series and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Invested Amount of any Series materially adversely affected thereby and continues to materially adversely affect such Investor AmountCertificateholders for such period; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; or;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights Investor Certificateholders of the Certificateholders any Series and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 2550% of the Aggregate Invested Amount of any Series materially adversely affected thereby and continues to materially adversely affect such Investor Amount, or if Certificateholders for such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuityperiod; or
(d) the Servicer shall (a) become insolventconsent to the appointment of a bankruptcy trustee or receiver or liquidator in any bankruptcy proceeding or any other insolvency, (b) fail readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or a decree or order of a court or agency or supervi sory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or receiver or liquidator in any bankruptcy proceeding or any other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable insolvency or reorganization statute, consent to, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filingobligations; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate Investor Invested Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination NoticeTERMINATION NOTICE"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and Agreement. The Servicer agrees that promptly after it receives such Termination Notice, the Servicer will at its own expense deliver to the Receivables and Trustee or to the proceeds thereof (other than its rights and interest, if any, as Holder bailee of the Exchangeable Certificate under this Agreement)Trustee a computer file or microfiche list containing a true and complete list of all Accounts, identified by account number and setting forth the Outstanding Balance of each Receivable as of the date of receipt of such Termination Notice. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsrights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account orEqualization Account, the Interest Funding Account or the Principal Account, and any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, obligations under the Letter of Credit Enhancement with respect to any Series to the Successor Servicer.. In connection with any service transfer, all reasonable costs and expenses (including attorneys, fees) incurred in connection with transferring the records, correspondence and other documents with respect to the Receivables and the other Trust Property to the Successor Servicer and Amending this Agreement to reflect such succession as Successor Servicer pursuant to this Section 10.1 and Section
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Apparel Retailers Inc)
Servicer Defaults. If any one of the following events (each, a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to deliver to the related Trustee for deposit in any of the Accounts or the Certificate Distribution Account any required payment or to direct the Indenture Trustee to make any paymentrequired distributions therefrom, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 or to make which failure continues unremedied for a drawing under any Letter period of Credit on or before the date occurring five three Business Days after discovery of such failure by an officer of the Servicer or after the date on which written notice of such paymentfailure, transfer, deposit or drawing or such instruction or notice is required requiring the same to be made remedied, shall have been given (i) to the Servicer by the related Trustee or given(ii) to the Servicer and to the Trustees by the Holders of Notes, as evidencing not less than 25% of the case may be, under Outstanding Amount of the terms of this Agreement or any Supplement; orNotes;
(b) failure on the part of by the Servicer (or so long as the Servicer is AHFC, the Seller) duly to observe or to perform in any material respect any other covenants or agreements of the Servicer (or so long as the Servicer is AHFC, the Seller) set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholdersother Basic Document, which continues failure shall (i) materially and adversely affect the rights of Certificateholders or Noteholders and (ii) continue unremedied for a period of 60 90 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given (A) to the Servicer or the Seller (as the case may be) by the Trustee, related Trustee or (B) to the Servicer or the Seller (as the case may be), and to the related Trustee by the Holders of Investor Certificates Notes, evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or Outstanding Amount of the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7Notes; or
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights occurrence of the Certificateholders and which continues to be incorrect in any material an Insolvency Event with respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by Seller or the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; or
(d) the Servicer shall (a) become insolvent, (b) fail to pay its debts generally as they become due, (c) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; then, and in each and every case, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 5125% of the Aggregate Investor AmountOutstanding Amount of the Notes (or, if the Notes have been paid in full and the Indenture has been discharged in accordance with its terms, by holders of Certificates evidencing not less than 25% of the Percentage Interests) by notice then given in writing to the Servicer (and to the Indenture Trustee and the Owner Trustee if given by the Investor CertificateholdersNoteholders) (a "Termination Notice"), may terminate all of the rights and obligations (other than the obligations set forth in Section 6.02 that accrued on or prior to the effective date of the termination) of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on On or after the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2specified in such written notice, all authority and power of the Servicer under this Agreement shall Agreement, whether with respect to the Notes, the Certificates or the Receivables or otherwise, shall, without further action, pass to and be vested in a the Indenture Trustee or such Successor ServicerServicer as may be appointed under Section 7.02; and, without limitation, the Indenture Trustee is and the Owner Trustee are hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf for the benefit of the predecessor Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of servicing rightsthe Receivables and related documents, or otherwise. The predecessor Servicer agrees to shall cooperate with the Trustee and such Successor Servicer and the Trustees in effecting the termination of the responsibilities and rights of the predecessor Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, including the transfer to the Successor Servicer for administration by it of all authority over all Collections which cash amounts that shall on at the date of transfer time be held by the predecessor Servicer for deposit, or which have been deposited by the predecessor Servicer, in the Collection Account, Accounts or the Finance Charge Certificate Distribution Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, Receivables and all Payments Ahead that shall at that time by held by the predecessor Servicer. All reasonable costs and expenses (including servicer conversion costs 50 and attorneys' fees) incurred in assisting connection with transferring the Receivable Files to the Successor Servicer and amending this Agreement to reflect such succession as Servicer pursuant to this Section shall be paid by the predecessor Servicer upon presentation of reasonable documentation of such costs and expenses. Any costs or expenses incurred in enforcing all rights to Insurance Proceeds. The connection with a Servicer Default shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing constitute an expense of administration under Title 11 of the Receivables in United States Bankruptcy Code or any other applicable Federal or State bankruptcy laws. Upon receipt of notice of the manner and at such times as the Successor occurrence of a Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidentialDefault, the Successor Servicer Indenture Trustee shall be required give notice thereof to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit to the Successor Servicereach Rating Agency.
Appears in 1 contract
Samples: Sale and Servicing Agreement (American Honda Receivables Corp)
Servicer Defaults. If any one of the following events (a "“Servicer Default"”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement the Indenture or any Indenture Supplement; or;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, an Adverse Effect and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2510% or more of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes (or, with respect to any such failure that does not relate to all Series, 10% or more of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Section 8.7; orSections 5.02 and 5.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect an Adverse Effect on the rights of the Certificateholders Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which Adverse Effect continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2510% or more of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or if certification that does not relate to all Series, 10% or more of the aggregate unpaid principal amount of all Series to which such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicerrepresentation, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuitywarranty or certification relates); or
(d) the Servicer shall (a) become insolventconsent to the appointment of a bankruptcy trustee, (b) fail conservator, receiver, liquidator or similar official in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee, conservator, receiver, liquidator or similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable bankruptcy, consent toinsolvency or reorganization statute, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, andits obligations; then, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenof any Servicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "“Termination Notice"”), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer under this Agreement Agreement; provided, however, if within 60 days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with subsection 7.02(c) to act as a Successor Servicer and in and receives an Officer’s Certificate of the Servicer to the Receivables and effect that the proceeds thereof (other than Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall grant a right of first refusal to the Transferor which would permit the Transferor at its rights and interest, if any, as Holder option to acquire the Notes on the Distribution Date in the next calendar month. The price for the Notes shall be equal to the sum of the Exchangeable Certificate under this Agreement)amounts specified therefor with respect to each outstanding Series in the related Indenture Supplement. The Transferor shall notify the Indenture Trustee prior to the Record Date for the Distribution Date of the acquisition if it is exercising such right of first refusal. If the Transferor exercises such right of first refusal, the Transferor shall deposit the price into the Collection Account not later than 1:00 p.m., New York City time, on such Distribution Date in immediately available funds. The price shall be allocated and distributed to Noteholders in accordance with the terms of the Indenture and each Indenture Supplement. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 10.27.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a Successor Servicer“Service Transfer”); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsServicer. The Servicer shall promptly within 20 Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. The Servicer shallshall pay to the Indenture Trustee and any Successor Servicer the reasonable transition expenses incurred by such person and the agents in connection with any transition of Servicing. Notwithstanding the foregoing, on a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the date applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, acts of terrorism, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, Owner Trustee, each Transferor and any servicing transferSeries Enhancer with an Officer’s Certificate giving prompt notice of such failure or delay by it, transfer all together with a description of its rights and efforts so to perform its obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (HSBC Credit Card Master Note Trust (Usa) I)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer (i) to deliver any information to the Collateral Agent required pursuant to Section 6.01(f) on or before the date such information is required to be given under the terms of this Credit Agreement and such failure shall remain unremedied for three Business Days after written notice from the Collateral Agent, (ii) to deliver any other information or reports to the Collateral Agent required pursuant to Section 6.01 (including, without limitation, the failure to deliver any Servicer's Daily Report or Settlement Report) on or before the date such information, Servicer's Daily Report or Settlement Report is required to be given or made under the terms of this Credit Agreement and such failure shall (in the case of any report other than a Servicer's Daily Report or Settlement Report) remain unremedied for ten Business Days after written notice from the Collateral Agent, or (iii) to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit on or before the date occurring five Business Days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Credit Agreement or any Supplementof the other Facility Documents to which it is a party; or
(b) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Credit Agreement or any Supplement of the other Facility Documents to which has it is a material adverse effect on the Certificateholdersparty, which failure continues unremedied for a period of 60 ten days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have been given to the Servicer by the TrusteeCollateral Agent, or to the Servicer and the Trustee Collateral Agent by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% any of the Aggregate Investor AmountAdministrative Agent, the Surety, or Triple-A; or the Servicer shall delegate assign its duties under this AgreementCredit Agreement or under any of the other Facility Documents to which it is a party, except as permitted by Section 8.7in accordance with the terms of Sections 10.02 and 13.04; or
(c) any representation, warranty or certification made by the Servicer in this Agreement, Agreement or any Supplement other Facility Document to which it is a party or in any certificate delivered pursuant to this Credit Agreement or any Supplement other Facility Document to which it is a party shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuitywhen made; or
(d) the Servicer shall become subject to an Insolvency Event; or
(ae) become insolventa final judgment is rendered against Ag Services while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(bf) the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is Ag Services or an Affiliate of Ag Services, the occurrence of any Event of Default specified in Section 9.01(l) or (r); or
(h) any of the Collateral Agent, the Administrative Agent, Triple-A or the Surety (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its debts generally as duties under this Agreement or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they become duereasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (c2) voluntarily seek, consent to, or acquiesce has defaulted on any of its material obligations (other than those included in the benefit or benefits of any Debtor Relief Lawthis Agreement), or (d3) become a party has ceased to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, conduct its business in the event such proceeding is involuntary, ordinary course; or
(i) the petition instituting same is not dismissed within 90 days after Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its filingduties hereunder; thenTHEN, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% of the Aggregate Investor Amount, Collateral Agent by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Servicer Termination Notice"), may at the request and shall at the direction of Triple-A or the Surety (and in either case, with the consent of the Liquidity Agent) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreementsuch termination being herein called a "Servicer Transfer"). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a the Successor ServicerServicer appointed pursuant to Section 10.02; and, without limitation, the Trustee Collateral Agent is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-in- fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee Collateral Agent and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables Acquired Advances and Loan Documents provided for under this Agreement, including, without limitation, all authority over all any Collections which shall on the date of transfer be held by the Servicer for deposit, deposit or which have been deposited by the Servicer, withdrawal in a Lock-Box Account or the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received by the Servicer with respect to the ReceivablesAcquired Advances and Loan Documents, and in assisting the Successor Servicer and in enforcing all rights under this Agreement including, without limitation, allowing the Successor Servicer's personnel access to Insurance Proceedsthe Servicer's premises for the purpose of collecting payments on the Acquired Advances and Loan Documents. The Servicer shall promptly transfer its electronic records relating to the Receivables Acquired Advances and Loan Documents to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence Records and documents necessary for the continued servicing of the Receivables Acquired Advances and Loan Documents in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer's officers and employees. To the extent that compliance with this Section 10.1 10.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights interest and obligations, if any, under the Letter of Credit as shall be satisfactory in form and substance to the Successor Servicer. The Servicer hereby consents to the entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to ensure compliance by the Servicer with the provisions of this paragraph.
Appears in 1 contract
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions advice or notice to the Receivables Trustee pursuant to Section 4.5 an agreed schedule of collections and allocations or to advise the Receivables Trustee to make a drawing any required drawing, withdrawal or payment pursuant to the Relevant Documents including under the documents governing any Letter of Credit Enhancement on or before the date occurring five (5) Business Days after the date such paymentdrawing, transfer, deposit withdrawal or drawing payment or such instruction advice or notice is required to be made or given, as the case may be, under the terms of this Agreement Deed or any Supplement; orRelevant Document;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement Deed or any Supplement other Relevant Document which has a material adverse effect Material Adverse Effect on the Certificateholders, interests of the Investor Beneficiaries in respect of any Outstanding Series and which continues unremedied for a period of 60 sixty (60) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Receivables Trustee, or to the Servicer and the Receivables Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% a majority of the Aggregate Investor Amount; or Beneficiaries, and continues to have a Material Adverse Effect on the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; orinterests of such Beneficiaries in respect of such Outstanding Series for such period;
(c) any relevant representation, warranty or certification made by the Servicer in this Agreement, any Supplement Deed or in any certificate delivered pursuant to this Agreement or any Supplement shall prove hereto proves to have been incorrect when made, which has a material adverse effect Material Adverse Effect on the rights interests of the Certificateholders Beneficiaries in respect of any Outstanding Series and which continues to be incorrect in any material respect for a period of 60 sixty (60) days after the date on which written notice of such failureincorrectness, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, Receivables Trustee or to the Servicer and the Receivables Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% a majority of the Aggregate Investor AmountBeneficiaries, and continues to have a Material Adverse Effect on the interest of such Beneficiaries in respect of such Outstanding Series for such period;
(d) an order of the court is made for the winding-up, dissolution, administration or if reorganisation (except for a solvent re-organisation) of the Servicer and such failure cannot be cured within such order shall have remained in force undischarged or unstayed for a period of sixty (60-day period owing ) days;
(e) a receiver, administrator, administrative receiver, liquidator, trustee or similar officer is legally and validly appointed over the Servicer or relating to causes beyond all of the control of Servicer, if 's revenues and assets;
(f) the Servicer shall fail consent to proceed promptly or take any corporate action relating to cure the same appointment of a receiver, administrator, administrative receiver, liquidator, trustee or similar officer of it or relating to all or substantially all of its revenues and thereafter prosecute assets or an order of the curing court is made for its winding-up, dissolution, administration or re-organisation (except for a solvent re-organisation) and such order shall have remained in force undischarged or unstayed for a period of such failure sixty (60) days;
(g) a duly authorised officer of the Servicer shall admit in writing that the Servicer is unable to pay its debts as they fall due within the meaning of Section 123(1) of the Insolvency Xxx 0000 or the Servicer makes a general assignment for the benefit of or a composition with diligence and continuityits creditors or voluntarily suspends payment of its obligations with a view to the general readjustment or rescheduling of its indebtedness; or
(dh) delegation by the Servicer shall of its duties under this Deed except as permitted by Clause 11.6 (a) become insolventDelegation of Duties), (b) fail to pay its debts generally as they become due, (c) voluntarily seek, consent to, or acquiesce which has a Material Adverse Effect on the interests of the Beneficiaries in the benefit or benefits respect of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntaryOutstanding Series, the petition instituting same is not dismissed within 90 days after its filing; then, so long as such Servicer Default shall not have been remedied, either the Receivables Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% of the Aggregate Investor Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Servicer Termination Notice"), ) may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to Deed. If the Receivables and the proceeds thereof (other than its rights and interestTrustee at any time becomes entitled to give a Servicer Termination Notice, it shall give such a notice if any, as Holder requested to do so by a majority of the Exchangeable Certificate Investor Beneficiaries and shall not give such a notice without the prior agreement of a majority of the Investor Beneficiaries. Notwithstanding the foregoing, a delay in or failure of performance or lack of correctness referred to in paragraph (a) above for a period of five Business Days or under this Agreement). After receipt paragraph (b) or (c) above for a period of 60 days shall not constitute a Servicer Default if such delay or failure could not have been prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of such Termination NoticeGod, and on the date that a Successor Servicer acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power cuts or similar causes. The preceding sentence shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of not relieve the Servicer under this Agreement shall pass from using its best efforts to and be vested perform its obligations in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate timely manner in accordance with the Trustee terms of this Deed and such Successor Servicer in effecting the termination of the responsibilities any relevant agreement and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary provide the Receivables Trustee, any Enhancement Provider and the Transferor with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to protect perform its interestobligations. The Servicer shall, on the date Receivables Trustee shall promptly forward a copy of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter of Credit such Officer's Certificate to the Successor Servicereach Beneficiary.
Appears in 1 contract
Servicer Defaults. If any one of the following events (a "“Servicer Default"”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit such payment, transfer or deposit on or before the date occurring five (5) Business Days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement Agreement, the Indenture or any Indenture Supplement; or;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, an Adverse Effect and which continues unremedied for a period of 60 sixty (60) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2510% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Section 8.7; orSections 5.02 and 5.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect an Adverse Effect on the rights of the Certificateholders Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which Adverse Effect continues to be incorrect in any material respect for a period of 60 sixty (60) days after the date on which written notice of such failurethereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less than 2510% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or if certification that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicerrepresentation, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; orwarranty or certification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (a60) become insolvent, (b) fail days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(ce) voluntarily seek, consent to, or acquiesce any other Servicer Default described in the benefit or benefits of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, andrelated Indenture Supplement; then, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenof any Servicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, Indenture Trustee or the Holders of Investor Certificates Notes evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate Investor Amountaggregate unpaid principal amount of all Notes, by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Investor CertificateholdersNoteholders) (a "“Termination Notice"”), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer under this Agreement Agreement; provided, however, if within sixty (60) days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with subsection 7.02(c) to act as a Successor Servicer and in and receives an Officer’s Certificate of the Servicer to the Receivables effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall grant a purchase option and right of first refusal to the proceeds thereof (other than Transferor which would permit the Transferor at its rights and interestoption to redeem or acquire the Notes on the Distribution Date in the next calendar month; provided further, if anyhowever, as Holder the foregoing purchase option or right of first refusal shall not apply in the case of a Servicer Default set forth in subsection 7.01(d). The price to redeem or acquire the Notes shall be equal to the sum of the Exchangeable Certificate under this Agreement)amounts specified therefor with respect to each outstanding Series in the related Indenture Supplement. The Transferor shall notify the Indenture Trustee in writing prior to the Record Date for the Distribution Date of the acquisition if it is exercising such purchase option and right of first refusal. If the Transferor exercises such purchase option or right of first refusal, the Transferor shall deposit the price into the Collection Account not later than 1:00 p.m., New York City time, on such Distribution Date in immediately available funds. The price shall be allocated and distributed to Noteholders in accordance with the terms of the Indenture and each Indenture Supplement. After receipt by the Servicer of such a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 10.27.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a Successor Servicer“Service Transfer”); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsService Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsServicer. The Servicer shall promptly within twenty (20) Business Days transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestinterests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of ten (10) Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of sixty (60) Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer shallfrom using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, on the date Owner Trustee, each Transferor and any Series Enhancer with an Officer’s Certificate giving prompt notice of any servicing transfersuch failure or delay by it, transfer all together with a description of its rights and efforts so to perform its obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Signet Jewelers LTD)
Servicer Defaults. If any one of the following events (subject to the last paragraph of this Section 10.01, a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 Article IV or to instruct the Trustee to make a drawing any required drawing, withdrawal or payment under any Letter of Credit Enhancement on or before the later of (i) the date occurring five 10 Business Days after the date such payment, transfer, deposit deposit, withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement Agreement, or any Supplement; or(ii) three Business Days after written notice of such failure shall have been given to the Servicer;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agreement, which has a material adverse effect on the Certificateholders, Investor Certificateholders of any Series and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate unpaid Initial Investor AmountInterest of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; or8.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights Investor Certificateholders of the Certificateholders any Series and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate unpaid Initial Investor Amount, or if Interest of any Series adversely affected thereby and continues to materially adversely affect such failure cannot be cured within Investor Certificateholders for such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuityperiod; or
(d) the Servicer shall (a) become insolventconsent to the appointment of a conservator or receiver or liquidator in any insolvency, (b) fail readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property; or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable insolvency or reorganization statute, consent to, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filingobligations; then, so long as such Servicer Default shall not have been remediedremedied or waived, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate aggregate unpaid Initial Investor AmountInterests of all outstanding Series, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations (other than unsatisfied obligations for acts or omissions during its tenure as Servicer) of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.210.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rightsrights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, or the Principal Account and any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsProceeds and Interchange (if any) applicable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 10.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, obligations under the Letter of Credit Enhancement with respect to any Series to the Successor Servicer. The Servicer being terminated shall bear all costs of a Service Transfer, including but not limited to those of the Trustee reasonably allocable to specific employees and overhead, legal fees and expenses, accounting and financial consulting fees and expenses, and costs of amending this Agreement, if necessary. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (c) for a period of 60 days, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, any Enhancement Provider, the Transferor and the Holders of Investor Certificates with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First Bankcard Master Credit Card Trust)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
: (a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 Article IV or to instruct Trustee to make a drawing any required drawing, withdrawal, or payment under any Letter of Credit Enhancement on or before the date occurring five ten Business Days after the date such payment, transfer, deposit withdrawal or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any SupplementAgreement; or
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement Agreement, which has a material adverse effect on the Certificateholders, Investor Holders of any Series and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor AmountInterest of any Series adversely affected thereby and continue to materially adversely affect such Investor Holders for such period; or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; or
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement Agreement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights Investor Holders of the Certificateholders any Series and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, Interest of any Series adversely affected thereby and continues to materially adversely affect such Investor Holders for such period; or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; or
(d) the Servicer shall (a) become insolventconsent to the appointment of a conservator or receiver or liquidator in any insolvency, (b) fail readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidating of its affairs, shall have been entered against Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable insolvency or reorganization statute, consent to, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filingobligations; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate Investor AmountInterest, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor CertificateholdersHolders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the and Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes purpose of such transfer of servicing rightsrights and obligations. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, hereunder including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account orAccount, the Principal Excess Funding Account, and any Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance ProceedsProceeds and Interchange (if any) applicable to the Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, obligations under the Letter of Credit Enhancement with respect to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.1(a) for a period of 30 Business Days or under subsection 10.1(b) or (c) for a period of 60 Business Days, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and Servicer shall provide Trustee, any Credit Enhancement Provider, Transferor and the Holders of Investor Certificates with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts to so perform its obligations.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First National Bank of Commerce)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 the terms of this Agreement or to make a drawing under any Letter of Credit Supplement on or before the date occurring five Business Days after the date such payment, transfer, transfer or deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement; or;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the Certificateholders, interests hereunder of the Investor Certificateholders of any Series or Class and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 2550% of the Aggregate Investor AmountAmount (or, with respect to any such failure that does not relate to all Series, 50% of the aggregate Investor Amount of all Series to which such failure relates); or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7; or8.02 or 8.07, a Responsible Officer of the Trustee has actual knowledge of such delegation and such delegation continues unremedied for 15 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing more than 50% of the Aggregate Investor Amount;
(c) any representation, warranty or certification made by the Servicer in this Agreement, Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series or Class and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 2550% of the Aggregate Investor AmountAmount (or, with respect to any such representation, warranty or if certification that does not relate to all Series, 50% of the aggregate Investor Amount of all Series to which such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicerrepresentation, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuitywarranty or certification relates); or
(d) the Servicer shall (a) become insolventconsent to the appointment of a conservator or receiver or liquidator in any insolvency, (b) fail readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, (c) voluntarily seekfile a petition to take advantage of any applicable insolvency or reorganization statute, consent to, or acquiesce in make any assignment for the benefit of its creditors or benefits voluntarily suspend payment of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, andits obligations; then, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing; thenof any Servicer Default, so long as such the Servicer Default shall not have been remedied, either the Trustee, Trustee or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less more than 5150% of the Aggregate Investor Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interestthereof; PROVIDED, HOWEVER, if any, within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with subsection 10.02(c) to act as Holder a Successor Servicer and receives an Officer's Certificate of the Exchangeable Certificate under this Agreement)Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall offer the Transferor the right at its option to purchase the Certificateholders' Interest on the Distribution Date next succeeding 60 days after the receipt by the Servicer of a Termination Notice. The purchase price for the Certificateholders' Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Transferor shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if it is exercising such option. If the Transferor exercises such option, the Transferor shall (x) if the Transferor's short-term deposits or long-term unsecured debt obligations are not rated at the time at least P-3 or Baa3, respectively, by Moody's, deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Transferor, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.210.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 10.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interestinterests. Notwithstanding the foregoing, any delay in or failure of performance under subsection 10.01(a) for a period of 5 Business Days or under subsections 10.01(b) or (c) for a period of 60 days (in addition to any period provided in subsections 10.01(a), (b) or (c)) shall not constitute a Servicer Default until the expiration of such additional 5 Business Days or 60 days, respectively, if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, terrorism, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer shallfrom using its best efforts to perform its respective obligations in a timely manner in accordance with the terms of this Agreement and any Supplement and the Servicer shall provide the Trustee, on each Rating Agency, the date Holders of any servicing transferthe Transferor Certificates and the Investor Certificateholders with an Officer's Certificate giving prompt notice of such failure or delay by it, transfer all together with a description of its rights and efforts to so perform its obligations, if any, under the Letter of Credit to the Successor Servicer.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Travelers Bank Credit Card Master Trust I)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Issuer Trustee or the Collateral Agent pursuant to Section 4.5 Article IV or to make a drawing any required drawing, withdrawal, or payment under any Letter of Credit Enhancement, or to deliver any required Monthly Report hereunder on or before the date occurring five two Business Days after the date such payment, transfer, deposit deposit, withdrawal or drawing drawing, or such instruction or notice or report is required to be made or given, as the case may be, under the terms of this Agreement or any SupplementAgreement; or
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has a material adverse effect on the CertificateholdersNoteholders, which continues unremedied for a period of 60 30 days after the first to occur of (i) the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the TrusteeCollateral Agent, or to the Servicer and the Trustee Collateral Agent by the Noteholders or the Applicable Indenture Trustee on behalf of such Holders of Investor Certificates evidencing Undivided Interests Notes aggregating not less than 25% of the Aggregate Investor Amount; or Principal Amount of any Series adversely affected thereby and (ii) the date on which a Responsible Officer of the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7becomes aware thereof and such failure continues to materially adversely affect such Noteholders for such period; or
(c) any representation, warranty or certification made by the Servicer in this Agreement, Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders Noteholders and which continues to be incorrect in any material respect for a period of 60 30 days after the first to occur of (i) the date on which written notice of such failure, incorrectness requiring the same to be remedied, remedied shall have been given to the Servicer and the Issuer Trustee by the TrusteeCollateral Agent, or to the Servicer Servicer, the Issuer Trustee and the Trustee Collateral Agent by the Noteholders or by the Applicable Indenture Trustee on behalf of Holders of Investor Certificates evidencing Undivided Interests Notes aggregating not less than 25% of the Aggregate Investor AmountPrincipal Amount of any Series adversely affected thereby and (ii) the date on which a Responsible Officer of the Servicer becomes aware thereof, or if and such failure cannot be cured within incorrectness continues to materially adversely affect such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of Holders for such failure with diligence and continuityperiod; or
(d) an Insolvency Event shall occur with respect to the Servicer; or
(e) the Servicer shall (a) become insolvent, (b) fail delegates any of its duties hereunder except to pay its debts generally as they become due, (c) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any Debtor Relief Law, or (d) become a party to (or be made the subject of) any proceeding provided extent such delegation is permitted hereunder and such delegation continues unremedied for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days after its filing15 days; then, so long as such Servicer Default shall not have been remedied, either the TrusteeCollateral Agent, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 51% of the Aggregate Investor AmountControlling Party, by written notice then given in writing to the Servicer and the Issuer Trustee (and to the Trustee Collateral Agent and Credit Enhancers if given by the Investor CertificateholdersNoteholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as Holder of the Exchangeable Certificate under this Agreement). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee Collateral Agent pursuant to Section 10.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee Collateral Agent is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-in- fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Subject to Section 12.2(c), the Servicer agrees to cooperate with the Trustee Collateral Agent and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, including without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables Trust Assets provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the any Collection Account, the Finance Charge Reserve Account or, the Principal or Termination Account, or which shall thereafter be received with respect to the ReceivablesTrust Assets, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer the Contract Files and its electronic records relating to the Receivables Contracts in the Contract Pool to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables Contracts in the Contract Pool in the manner and at such times as the Collateral Agent or the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, under the Letter in respect of Credit any Enhancement to the Successor Servicer. In connection with any servicing transfer, all reasonable costs and expenses (including reasonable attorneys' fees) incurred in connection with transferring the Contracts in the Contract Pool and the other Trust Assets to the Successor Servicer and amending this Agreement to reflect such succession as Successor Servicer pursuant to this Section 10.1 and Section 10.2 shall be paid by the Servicer (unless the Collateral Agent is acting as the Servicer, in which case the original Servicer) upon presentation of reasonable documentation of such costs and expenses. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.1(a) for a period of five Business Days, or under subsection 10.1(b), (c) or (e) for a period of 60 days, in each case in addition to any grace period specified in such subsections, shall not constitute a Servicer Default if such delay or failure could not have been prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or public enemy, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages, bank closings, communications malfunction, computer malfunction or other electronic system malfunction or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Issuer Trustee, the Collateral Agent, the Seller and certain providers of Credit Enhancement with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations. The Servicer shall immediately notify the Collateral Agent in writing of any Servicer Default.
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Samples: Pooling, Collateral Agency and Servicing Agreement (Newcourt Receivables Corp)
