Interest Rate Caps. (a) The Trustee hereby acknowledges that the Class A Interest Rate Cap has been obtained for the benefit of the Class A Certificateholders and the Class B Interest Rate Cap for the benefit of the Class B Certificateholders. Each of the Interest Rate Caps provides that (i) the Trust shall not be required to make any payments thereunder and (ii) the Trust shall be entitled to receive a payment (determined in accordance with the respective Interest Rate Cap) from the Interest Rate Cap Provider on or prior to each Transfer Date if LIBOR plus [ %] for the ---- related Interest Accrual Period exceeds the Class A Cap Rate or LIBOR plus [____%] for the related Interest Accrual Period exceeds the Class B Cap Rate. The Interest Rate Cap Provider will make a payment on or prior to each Transfer Date to the Trustee, on behalf of the Trust, in an amount equal to the product of (i) the amount by which, in the case of the Class A Interest Rate Cap, LIBOR plus [____%] exceeds the Class A Cap Rate or, in the case of the Class B Interest Rate Cap, LIBOR plus [____%] exceeds the Class B Cap Rate, as applicable, (ii) the Class A Notional Amount or the Class B Notional Amount, as applicable, for the related Calculation Period, and (iii) the actual number of days in such Calculation Period divided by 360. Payments pursuant to the Class A Interest Rate Cap will be deposited in the Distribution Account for payment to the Class A Certificateholders on the following Distribution Date. Payments pursuant to the Class B Interest Rate Cap will be deposited in the Distribution Account for payment to the Class B Certificateholders on the following Distribution Date. (b) In the event that the counterparty rating of the Interest Rate Cap Provider is withdrawn or reduced below Aa3 by Moody's or below AAA by Standard & Poor's or, with respect only to an Interest Rate Cap Provider for a Replacement Interest Rate Cap, (i) the long term unsecured debt or long term certificate of deposit rating of such Interest Rate Cap Provider is withdrawn or reduced below Aa3 by Moody's or (ii) the short term unsecured debt or short term certificate of deposit rating of the Interest Rate Cap Provider is withdrawn or reduced below A-1+ by Standard & Poor's, then within 30 days after such withdrawal or reduction (notice of which the Interest Rate Cap Provider is required, under each Interest Rate Cap, to provide to the Trustee, Moody's and Standard & Poor's promptly upon obtaining knowledge thereof), the Interest Rate Cap Provider, at its own expense, is required, under each Interest Rate Cap, either to (x) obtain a Replacement Interest Rate Cap for each such Interest Rate Cap to which it is then currently a party or (y) enter into or establish, with respect to each such Interest Rate Cap, any other arrangement satisfactory to Moody's and Standard & Poor's, including collateral, guarantees or letters of credit, which arrangement will result in Moody's and Standard & Poor's not reducing or withdrawing the ratings of the Class A Certificates or the Class B Certificates in effect immediate prior to the ratings downgrade of the Interest Rate Cap Provider (a "Qualified Substitute Arrangement"). Upon receipt of notice of any such reduction or withdrawal, the Trustee, at the direction of the Servicer, shall, unless such a Replacement Interest Rate Cap Provider or Qualified Substitute Arrangement has theretofore been established or obtained, use its best efforts to establish or obtain or cause the Interest Rate Cap Provider to establish or obtain, with respect to each such Interest Rate Cap, a Replacement Interest Rate Cap or Qualified Substitute Arrangement; provided, however, that in -------- ------- the event at any time any Qualified Substitute Arrangement established pursuant to this Section 4.11 or pursuant to the applicable Interest Rate Cap shall cease to be satisfactory to the Rating Agency or shall terminate prior to the Class A Scheduled Payment Date (in the case of a Qualified Substitute Arrangement with respect to the Class A Interest Rate Cap) or the Class B Scheduled Payment Date (in the case of a Qualified Substitute Arrangement with respect to the Class B Interest Rate Cap), then the provisions of this Section 4.11(b) shall again be applied and in connection therewith the 30-day period referred to above shall commence on the date the Servicer receives notice of such cessation or termination, as the case may be. Subject to Section 4.11(c) below, the Trustee shall, with respect to any Interest Rate Cap for which a Replacement Interest Rate Cap or Qualified Substitute Arrangement has been or (with respect to clauses (A), (C) and (D) below) will be obtained, (A) timely provide any written notice required thereby to the Interest Rate Cap Provider of its intention to terminate the Interest Rate Cap within such 30-day period, (B) terminate such Interest Rate Cap within such 30-day period, (C) request the payment to it of all amounts due to the Trust under such Interest Rate Cap through the termination date and (D) deposit any such amounts so received, on the day of receipt, to the Collection Account for application as Finance Charge Receivables for the benefit of the applicable Class of Certificateholders. (c) The Trustee shall not at any time terminate any Interest Rate Cap (including any Replacement Interest Rate Cap or Qualified Substitute Arrangement with respect thereto) unless, prior to or simultaneously with the termination thereof, the Interest Rate Cap Provider, the Trustee or the Servicer has obtained or shall obtain (i) a Replacement Interest Rate Cap or Qualified Substitute Arrangement with respect thereto, (ii) to the extent applicable, an Opinion of Counsel as to the due authorization, execution, delivery, validity and enforceability of such Replacement Interest Rate Cap or Qualified Substitute Arrangement, as the case may be, and (iii) a letter from each of Moody's and Standard & Poor's confirming that the termination of such Interest Rate Cap and its replacement with such Replacement Interest Rate Cap or Qualified Substitute Arrangement will not result in a reduction or withdrawal of its rating of the Class A Certificates or the Class B Certificates. Notwithstanding anything to the contrary in Section 4.11(b) above, the Trustee shall not at any time terminate any such Interest Rate Cap (or such Replacement Interest Rate Cap or Qualified Substitute Arrangement with respect thereto) that comprises all or a portion of any Qualified Substitute Arrangement established pursuant to subsection 4.11(b) unless the latter Qualified Substitute Arrangement has been or is required to be terminated pursuant to this Section 4.11. (d) The Servicer shall notify the Trustee, the Rating Agency and the Collateral Interest Holder within five Business Days after obtaining knowledge that the long term unsecured debt or the long term certificate of deposit rating of the Interest Rate Cap Provider has been withdrawn or reduced by Moody's or Standard & Poor's. (e) Notwithstanding the foregoing, the Servicer may at any time obtain a Replacement Interest Rate Cap, provided that the Servicer delivers to the Trustee (i) an Opinion of Counsel as to the due authorization, execution and delivery and validity and enforceability of such Replacement Interest Rate Cap and (ii) a letter from each of Moody's and Standard & Poor's confirming that the termination of the then current Interest Rate Cap and its replacement with such Replacement Interest Rate Cap will not adversely affect its rating of the Class A Certificates or the Class B Certificates. (f) The Trustee hereby appoints the Interest Rate Cap Provider to perform the duties of the calculation agent under the Interest Rate Cap, subject to the terms of the Interest Rate Cap and to any subsequent replacement of the Interest Rate Cap pursuant to this Section 4.11, and the Interest Rate Cap Provider accepts such appointment. The Trustee shall, at the direction of the Servicer, request a copy of the audited annual consolidated financial statements of the Interest Cap Provider, prepared in accordance with accounting principles that are generally accepted in its place of domicile. (g) The Trustee, on behalf of the Certificateholders, shall have the right to, and upon notification from the Servicer shall, sell all or a portion of the Interest Rate Caps subject to the following conditions having been met: (i) The Notional Amount of the unsold portion of each Interest Rate Cap remaining as an asset of the Trust shall at least equal the Class A Adjusted Investor Interest, in the case of the Class A Interest Rate Cap, and the Class B Investor Interest, in the case of the Class B Interest Rate Cap, outstanding as of the date of such sale; and (ii) The Trustee shall have received written confirmation from the Rating Agency that such sale will not result in a reduction or withdrawal of the then current rating on the relevant class of Certificates by the Rating Agency. (h) The Servicer shall have the duty of (i) obtaining a fair market value price for the sale of the Trust's rights under any portion of an Interest Rate Cap sold pursuant to the subsection 4.11(g), (ii) notifying the Trustee of prospective purchasers and bids, (iii) selecting the purchaser of such portion of the Interest Rate Cap, and (iv) instructing the selected purchaser (and/or the Trustee) to deposit the purchase price therefor into the Collection Account. The Trustee, upon receipt of the purchase price into the Collection Account, shall execute all documentation, prepared by the Servicer, necessary to effect the transfer of the Trust's rights under such portion of the Interest Rate Cap and to release the lien of the Trustee thereon and proceeds thereof. Funds deposited in the Collection Account in respect of the sale of all or a portion of a Class A Interest Rate Cap or a Class B Interest Rate Cap shall be applied on the next Transfer Date as, respectively, Class A Available Funds or Class B Available Funds in accordance with subsections 4.6(a) and (b).
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Peoples Bank Credit Card Master Trust)
Interest Rate Caps. (a) The Trustee hereby acknowledges that the Class A Interest Rate Cap has been obtained for the benefit of the Class A Certificateholders and the Class B Interest Rate Cap for the benefit of the Class B Certificateholders. Each of the Interest Rate Caps provides that (i) the Trust shall not be required to make any payments thereunder and (ii) the Trust shall be entitled to receive a payment (determined in accordance with the respective Interest Rate Cap) from the Interest Rate Cap Provider on or prior to each Transfer Date if LIBOR plus [ %] 0.13% for the ---- related Interest Accrual Period exceeds the Class A Cap Rate or LIBOR plus [____%] 0.33% for the related Interest Accrual Period exceeds the Class B Cap Rate. The Interest Rate Cap Provider will make a payment on or prior to each Transfer Date to the Trustee, on behalf of the Trust, in an amount equal to the product of (i) the amount by which, in the case of the Class A Interest Rate Cap, LIBOR plus [____%] 0.13% exceeds the Class A Cap Rate or, in the case of the Class B Interest Rate Cap, LIBOR plus [____%] 0.33% exceeds the Class B Cap Rate, as applicable, (ii) the Class A Notional Amount or the Class B Notional Amount, as applicable, for the related Calculation Period, and (iii) the actual number of days in such Calculation Period divided by 360. Payments pursuant to the Class A Interest Rate Cap will be deposited in the Distribution Account for payment to the Class A Certificateholders on the following Distribution Date. Payments pursuant to the Class B Interest Rate Cap will be deposited in the Distribution Account for payment to the Class B Certificateholders on the following Distribution Date.
(b) In the event that the counterparty rating of the Interest Rate Cap Provider is withdrawn or reduced below Aa3 by Moody's ▇▇▇▇▇'▇ or below AAA by Standard & Poor's or, with respect only to an Interest Rate Cap Provider for a Replacement Interest Rate Cap, (i) the long term unsecured debt or long term certificate of deposit rating of such Interest Rate Cap Provider is withdrawn or reduced below Aa3 by Moody's ▇▇▇▇▇'▇ or (ii) the short term unsecured debt or short term certificate of deposit rating of the Interest Rate Cap Provider is withdrawn or reduced below A-1+ by Standard & Poor's, then within 30 days after such withdrawal or reduction (notice of which the Interest Rate Cap Provider is required, under each Interest Rate Cap, to provide to the Trustee, Moody's ▇▇▇▇▇'▇ and Standard & Poor's promptly upon obtaining knowledge thereof and notice of which the Trustee shall provide to the Servicer and Fitch within two Business Days after receipt thereof), the Interest Rate Cap Provider, at its own expense, is required, under each Interest Rate Cap, either to (x) obtain a Replacement Interest Rate Cap for each such Interest Rate Cap to which it is then currently a party or (y) enter into or establish, with respect to each such Interest Rate Cap, any other arrangement satisfactory to Moody's ▇▇▇▇▇'▇ and Standard & Poor's, including collateral, guarantees or letters of credit, which arrangement will result in Moody's ▇▇▇▇▇'▇ and Standard & Poor's not reducing or withdrawing the ratings of the Class A Certificates or the Class B Certificates in effect immediate prior to the ratings downgrade of the Interest Rate Cap Provider (a "Qualified Substitute Arrangement"). Upon receipt of notice of any such reduction or withdrawal, the Trustee, at the direction of the Servicer, shall, unless such a Replacement Interest Rate Cap Provider or Qualified Substitute Arrangement has theretofore been established or obtained, use its best efforts to establish or obtain or cause the Interest Rate Cap Provider to establish or obtain, with respect to each such Interest Rate Cap, a Replacement Interest Rate Cap or Qualified Substitute Arrangement; provided, however, that in -------- ------- the event at any time any Qualified Substitute Arrangement established pursuant to this Section 4.11 or pursuant to the applicable Interest Rate Cap shall cease to be satisfactory to the Rating Agency or shall terminate prior to the Class A Scheduled Payment Date (in the case of a Qualified Substitute Arrangement with respect to the Class A Interest Rate Cap) or the Class B Scheduled Payment Date (in the case of a Qualified Substitute Arrangement with respect to the Class B Interest Rate Cap), then the provisions of this Section 4.11(b) shall again be applied and in connection therewith the 30-day period referred to above shall commence on the date the Servicer receives notice of such cessation or termination, as the case may be. Subject to Section 4.11(c) below, the Trustee shall, with respect to any Interest Rate Cap for which a Replacement Interest Rate Cap or Qualified Substitute Arrangement has been or (with respect to clauses (A), (C) and (D) below) will be obtained, (A) timely provide any written notice required thereby to the Interest Rate Cap Provider of its intention to terminate the Interest Rate Cap within such 30-day period, (B) terminate such Interest Rate Cap within such 30-day period, (C) request the payment to it of all amounts due to the Trust under such Interest Rate Cap through the termination date and (D) deposit any such amounts so received, on the day of receipt, to the Collection Account for application as Finance Charge Receivables for the benefit of the applicable Class of Certificateholders.
(c) The Trustee shall not at any time terminate any Interest Rate Cap (including any Replacement Interest Rate Cap or Qualified Substitute Arrangement with respect thereto) unless, prior to or simultaneously with the termination thereof, the Interest Rate Cap Provider, the Trustee or the Servicer has obtained or shall obtain (i) a Replacement Interest Rate Cap or Qualified Substitute Arrangement with respect thereto, (ii) to the extent applicable, an Opinion of Counsel as to the due authorization, execution, delivery, validity and enforceability of such Replacement Interest Rate Cap or Qualified Substitute Arrangement, as the case may be, and (iii) a letter from each of Moody's ▇▇▇▇▇'▇ and Standard & Poor's confirming that the termination of such Interest Rate Cap and its replacement with such Replacement Interest Rate Cap or Qualified Substitute Arrangement will not result in a reduction or withdrawal of its rating of the Class A Certificates or the Class B Certificates. Notwithstanding anything to the contrary in Section 4.11(b) above, the Trustee shall not at any time terminate any such Interest Rate Cap (or such Replacement Interest Rate Cap or Qualified Substitute Arrangement with respect thereto) that comprises all or a portion of any Qualified Substitute Arrangement established pursuant to subsection 4.11(b) unless the latter Qualified Substitute Arrangement has been or is required to be terminated pursuant to this Section 4.11.
(d) The Servicer shall notify the Trustee, the Rating Agency and the Collateral Interest Holder within five Business Days after obtaining knowledge that the long term unsecured debt or the long term certificate of deposit rating of the Interest Rate Cap Provider has been withdrawn or reduced by Moody's ▇▇▇▇▇'▇ or Standard & Poor's.
(e) Notwithstanding the foregoing, the Servicer may at any time obtain a Replacement Interest Rate Cap, provided that the Servicer delivers to the Trustee (i) an Opinion of Counsel as to the due authorization, execution and delivery and validity and enforceability of such Replacement Interest Rate Cap and (ii) a letter from each of Moody's ▇▇▇▇▇'▇ and Standard & Poor's confirming that the termination of the then current Interest Rate Cap and its replacement with such Replacement Interest Rate Cap will not adversely affect its rating of the Class A Certificates or the Class B Certificates.
(f) The Trustee hereby appoints the Interest Rate Cap Provider to perform the duties of the calculation agent under the Interest Rate Cap, subject to the terms of the Interest Rate Cap and to any subsequent replacement of the Interest Rate Cap pursuant to this Section 4.11, and the Interest Rate Cap Provider accepts such appointment. The Trustee shall, at the direction of the Servicer, request a copy of the audited annual consolidated financial statements of the Interest Cap Provider, prepared in accordance with accounting principles that are generally accepted in its place of domicile.
(g) The Trustee, on behalf of the Certificateholders, shall have the right to, and upon notification from the Servicer shall, sell all or a portion of the Interest Rate Caps subject to the following conditions having been met:
(i) The Notional Amount of the unsold portion of each Interest Rate Cap remaining as an asset of the Trust shall at least equal the Class A Adjusted Investor Interest, in the case of the Class A Interest Rate Cap, and the Class B Investor Interest, in the case of the Class B Interest Rate Cap, outstanding as of the date of such sale; and
(ii) The Trustee shall have received written confirmation from the Rating Agency that such sale will not result in a reduction or withdrawal of the then current rating on the relevant class of Certificates by the Rating Agency.
(h) The Servicer shall have the duty of (i) obtaining a fair market value price for the sale of the Trust's rights under any portion of an Interest Rate Cap sold pursuant to the subsection 4.11(g), (ii) notifying the Trustee of prospective purchasers and bids, (iii) selecting the purchaser of such portion of the Interest Rate Cap, and
and (iv) instructing the selected purchaser (and/or the Trustee) to deposit the purchase price therefor into the Collection Account. The Trustee, upon receipt of the purchase price into the Collection Account, shall execute all documentation, prepared by the Servicer, necessary to effect the transfer of the Trust's rights under such portion of the Interest Rate Cap and to release the lien of the Trustee thereon and proceeds thereof. Funds deposited in the Collection Account in respect of the sale of all or a portion of a Class A Interest Rate Cap or a Class B Interest Rate Cap shall be applied on the next Transfer Date as, respectively, Class A Available Funds or Class B Available Funds in accordance with subsections 4.6(a) and (b).Class
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Peoples Bank Credit Card Master Trust)
Interest Rate Caps. (a) The Trustee hereby acknowledges that On or prior to the Closing Date, ------------------ the Transferor shall enter into the Class A Interest Rate Cap has been obtained for the benefit of the Class A Certificateholders and the Class B Interest Rate Cap for the benefit of the Class B Certificateholders. Each Except as provided below, each of the Class A Interest Rate Cap and the Class B Interest Rate Cap provides that it will terminate on the earlier of the day the outstanding principal balance of the Class A Certificates or the Class B Certificates, as applicable, is reduced to zero and the day following the Stated Series Termination Date. The Transferor does hereby transfer, assign, set-over, and otherwise convey to the Trustee for the benefit of the Class A Certificateholders and the Class B Certificateholders, without recourse, all of its rights under the Class A Interest Rate Cap and the Class B Interest Rate Cap, respectively, and all proceeds thereof. Such property shall constitute Trust Property for all purposes of the Agreement. The foregoing transfer, assignment, set-over and conveyance does not constitute and is not intended to result in a creation or an assumption by the Trust, the Trustee or any Certificateholder of any obligation of the Transferor or any other Person in connection with the Interest Rate Caps or under any agreement or instrument relating thereto. In connection with such transfer, the Transferor agrees to record and file, at its own expense, financing statements (and continuation statements with respect to such financing statements when applicable) with respect to the Interest Rate Caps for the transfer of general intangibles (as defined in the UCC in effect in the Relevant UCC State) meeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary to perfect the foregoing transfer and assignment by the Transferor to the Trustee, and to deliver a file-stamped copy of such financing statements or other evidence of such filings to the Trustee on or prior to the Closing Date. In connection with such transfer, the Transferor agrees to deliver to the Trustee on or prior to the Closing Date an executed copy of each of the Interest Rate Caps. The Transferor hereby grants to the Trustee a security interest in all of the Transferor's rights under the Interest Rate Caps provides in order to secure the payment of the Class A Certificates and Class B Certificates. This Agreement shall constitute a security agreement under applicable law. The Trustee hereby acknowledges its acceptance, to the extent validly transferred, assigned, set-over or otherwise conveyed to the Trustee, for the benefit of the Class A Certificateholders and the Class B Certificateholders, of all of the rights previously held by the Transferor under the Class A Interest Rate Cap and the Class B Interest Rate Cap, respectively, and all proceeds thereof, and declares that it shall hold such rights upon the trust set forth herein and in the Agreement, and subject to the terms hereof and thereof, for the benefit of the Class A Certificateholders and the Class B Certificateholders, respectively.
(b) The Interest Rate Caps shall not require the Trustee or the Trust to make any payments thereunder, and each Interest Rate Cap shall provide that (i) the Trust shall not be required to make any payments thereunder and (ii) the Trust Trustee shall be entitled to receive a payment (determined in accordance with the respective Interest Rate Cap) from the Interest Rate Cap Provider on or prior to each Transfer Distribution Date if LIBOR plus [ %] for the ---- related Interest Accrual Period plus 0.23% exceeds the Class A Cap Rate or LIBOR plus [____%] for the related Interest Accrual Period plus 0.59% exceeds the Class B Cap Rate, and (ii) notwithstanding any prior termination of the Agreement, the Interest Rate Cap Provider shall not, prior to the date which is one year and one day after the final payment of the Series 2000-1 Certificates, petition or otherwise invoke the process of any governmental authority for the purpose of commencing or sustaining a case against the Trust under any federal or state bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Trust or any substantial part of its property or ordering the winding up or liquidation of the affairs of the Trust. The Interest Rate Caps shall require the Interest Rate Cap Provider will to make a payment on or prior to each Transfer Distribution Date to the Trustee, on behalf of the TrustClass A Certificateholders or the Class B Certificateholders, as applicable, in an amount equal to the product of (i) the amount by which, in the case of the Class A Interest Rate Cap, LIBOR plus [____%] the Class A Certificate Rate for the related Interest Period exceeds the Class A Cap Rate or, in the case of the Class B Interest Rate Cap, LIBOR plus [____%] the Class B Certificate Rate for the related Interest Period exceeds the Class B Cap Rate, as applicable, (ii) the Class A Notional Amount or the Class B Notional Amount, as applicable, for the related Calculation Period, such Interest Period and (iii) the actual number of days in such Calculation Interest Period divided by 360. Payments pursuant to the Class A Interest Rate Cap will shall be deposited in the Collection Account on each Distribution Account Date for payment to the Class A Certificateholders on the following such Distribution Date. Payments pursuant to the Class B Interest Rate Cap will shall be deposited in the Collection Account on each Distribution Account Date for payment to the Class B Certificateholders on the following such Distribution Date.
(bc) In the event that the counterparty short-term debt rating of the Interest Rate Cap Provider is withdrawn or reduced below P-1 by ▇▇▇▇▇'▇ or A-1+ by Standard & Poor's or the long-term unsecured debt rating of the Interest Rate Cap Provider is withdrawn or reduced below Aa3 by Moody's ▇▇▇▇▇'▇, then within 60 days (in the case of a withdrawal or below AAA reduction by Standard & Poor's or, with respect only to an Interest Rate Cap Provider for 's) or 30 days (in the case of a Replacement Interest Rate Cap, (iwithdrawal or reduction by ▇▇▇▇▇'▇) after such decline in the long term unsecured debt or long term certificate of deposit rating of such Interest Rate Cap Provider is withdrawn or reduced below Aa3 by Moody's or (ii) the short term unsecured debt or short term certificate of deposit rating creditworthiness of the Interest Rate Cap Provider is withdrawn or reduced below A-1+ as determined by Standard & Poor's, then within 30 days after such withdrawal or reduction the applicable Rating Agency (notice of which the Interest Rate Cap Provider is required, under each Interest Rate Cap, shall be required to provide to the Trustee, Moody's Trustee and Standard & Poor's the Rating Agencies promptly upon obtaining knowledge thereof), the Interest Rate Caps shall require the Interest Rate Cap Provider, at its own expense, is required, under each Interest Rate Cap, to either to (x) obtain a Replacement Interest Rate Cap for each such Interest Rate Cap to under which it is then currently a party an obligor or (y) enter into or establish, with respect to each such Interest Rate Cap, any other arrangement satisfactory to Moody's and Standard & Poor's, including collateral, guarantees or letters of credit, which arrangement will result in Moody's and Standard & Poor's not reducing or withdrawing the ratings of the Class A Certificates or the Class B Certificates in effect immediate prior to the ratings downgrade of the Interest Rate Cap Provider (a "Qualified Substitute Arrangement"). Upon receipt of notice of any such reduction or withdrawal, the Trustee, at the direction of the Servicer, shall, unless such a Replacement Interest Rate Cap Provider or Qualified Substitute Arrangement has theretofore been established or obtained, Servicer shall use its best efforts to establish either:
(i) with the prior written confirmation of each Rating Agency that such action will not result in a reduction or obtain withdrawal of the rating of the Class A Certificates or the Class B Certificates, (1) cause the Interest Rate Cap Provider to establish pledge securities in the manner provided by applicable law or obtain(2) otherwise cause to be pledged securities, with respect which in each case shall be held by the Trustee, its custodian or its agent free and clear of the Lien of any third party, in a manner conferring on the Trustee a perfected first Lien in such securities securing the Interest Rate Cap Provider's performance of its obligations under the applicable Interest Rate Cap(s); or
(ii) (A) provide written notice to each such Interest Rate CapCap Provider of the Transferor's intention to terminate such Interest Rate Cap within such 30-day period or 60-day period, as applicable, (B) terminate such Interest Rate Cap on behalf of the Transferor within such 30-day period or 60-day period, as applicable, and (C) request the payment to it of all amounts due under such Interest Rate Cap through the termination date and deposit any such amounts so received, on the day of receipt, to the Collection Account for application as Class A Available Funds or Class B Available Funds, as applicable; provided however, that the Servicer shall -------- ------- not effect any termination of any Interest Rate Cap unless a Replacement Interest Rate Cap or Qualified Substitute Arrangement meeting the requirements of Section 4A(d) has been obtained or will be obtained prior to or simultaneously with the termination of such Interest Rate Cap; or
(iii) with the prior written confirmation of each Rating Agency that such action will not result in a reduction or withdrawal of the rating of the Class A Certificates or the Class B Certificates, establish any other arrangement satisfactory to the Rating Agency including collateral, guarantees or letters of credit (a "Qualified Substitute -------------------- Arrangement"); ----------- provided, however, that in -------- ------- the event at any time any Replacement Interest Rate -------- ------- Cap, Qualified Substitute Arrangement established or arrangement pursuant to clause (i) of this Section 4.11 or pursuant to the applicable Interest Rate Cap sentence shall cease to be satisfactory to the Rating Agency or shall terminate prior to the Class A Scheduled Payment Date (in the case of a Qualified Substitute Arrangement with respect to the Class A Interest Rate Cap) or the Class B Scheduled Payment Date (in the case of a Qualified Substitute Arrangement with respect to the Class B Interest Rate Cap)Expected Final Distribution Date, then the provisions of this Section 4.11(b4A(c) shall again be applied and in connection therewith the 30-day period or 60-day period, as applicable, referred to above shall commence on the date the Servicer receives notice of such cessation or termination, as the case may be. Subject to Section 4.11(c) below, the Trustee shall, with respect to any Interest Rate Cap for which a Replacement Interest Rate Cap or Qualified Substitute Arrangement has been or (with respect to clauses (A), (C) and (D) below) will be obtained, (A) timely provide any written notice required thereby to the Interest Rate Cap Provider of its intention to terminate the Interest Rate Cap within such 30-day period, (B) terminate such Interest Rate Cap within such 30-day period, (C) request the payment to it of all amounts due to the Trust under such Interest Rate Cap through the termination date and (D) deposit any such amounts so received, on the day of receipt, to the Collection Account for application as Finance Charge Receivables for the benefit of the applicable Class of Certificateholders.
(cd) The Trustee Servicer shall not at any time terminate effect any termination of any Interest Rate Cap (including any Replacement Interest Rate Cap or Qualified Substitute Arrangement with respect thereto) unless, prior to or simultaneously with the termination thereof, the Interest Rate Cap Provider, the Trustee or the Servicer has obtained or shall obtain (i) a Replacement Interest Rate Cap or Qualified Substitute Arrangement with respect thereto, (ii) to the extent applicable, an Opinion of Counsel addressed to the Trustee as to the due authorization, execution, delivery, execution and delivery and the validity and enforceability of such Replacement Interest Rate Cap or Qualified Substitute Arrangement, as the case may be, and (iii) a letter from each of Moody's and Standard & Poor's the Rating Agencies confirming that the termination of such Interest Rate Cap and its replacement with such Replacement Interest Rate Cap or Qualified Substitute Arrangement will not result in a reduction or withdrawal of adversely affect its rating of the Class A Certificates or the Class B Certificates. Notwithstanding anything , all such documents to be delivered to the contrary in Section 4.11(b) above, the Trustee shall not at any time terminate any such Interest Rate Cap (or such Replacement Interest Rate Cap or Qualified Substitute Arrangement with respect thereto) that comprises all or a portion of any Qualified Substitute Arrangement established pursuant to subsection 4.11(b) unless the latter Qualified Substitute Arrangement has been or is required to be terminated pursuant to this Section 4.11Trustee.
(de) The Servicer shall notify the Trustee, Trustee and the Rating Agency and the Collateral Interest Holder Agencies within five Business Days after obtaining knowledge that the short term unsecured debt or short term certificate of deposit rating, or long term unsecured debt or the long term certificate of deposit rating rating, of the Interest Rate Cap Provider has been is withdrawn or reduced by Moody's or Standard & Poor's's or ▇▇▇▇▇'▇.
(ef) Notwithstanding the foregoing, the Servicer may at any time obtain a Replacement Interest Rate CapCap or Qualified Substitute Arrangement, provided that the Servicer delivers to the Trustee (i) an Opinion of Counsel addressed to the Trustee as to the due authorization, execution and delivery and validity and enforceability of such Replacement Interest Rate Cap or Qualified Substitute Arrangement with respect to the provider thereof and (ii) a letter from each of Moody's and Standard & Poor's the Rating Agencies confirming that the termination of the then current Interest Rate Cap and its replacement with such Replacement Interest Rate Cap or Qualified Substitute Arrangement will not adversely affect its rating their respective ratings of the Class A Certificates or the Class B Certificates.
(fg) The Trustee hereby appoints Interest Rate Caps shall provide that the Interest Rate Cap Provider to shall perform the duties of the calculation agent under the Interest Rate Cap, subject to the terms of the Interest Rate Cap and to any subsequent replacement of the Interest Rate Cap pursuant to this Section 4.11, and the Interest Rate Cap Provider accepts such appointment. The Trustee shall, at the direction of the Servicer, request a copy of the audited annual consolidated financial statements of the Interest Cap Provider, prepared in accordance with accounting principles that are generally accepted in its place of domicileCaps.
(g) The Trustee, on behalf of the Certificateholders, shall have the right to, and upon notification from the Servicer shall, sell all or a portion of the Interest Rate Caps subject to the following conditions having been met:
(i) The Notional Amount of the unsold portion of each Interest Rate Cap remaining as an asset of the Trust shall at least equal the Class A Adjusted Investor Interest, in the case of the Class A Interest Rate Cap, and the Class B Investor Interest, in the case of the Class B Interest Rate Cap, outstanding as of the date of such sale; and
(ii) The Trustee shall have received written confirmation from the Rating Agency that such sale will not result in a reduction or withdrawal of the then current rating on the relevant class of Certificates by the Rating Agency.
(h) The Servicer shall have the duty of (i) obtaining a fair market value price for the sale of the Trust's rights under any portion of an Interest Rate Cap sold pursuant to the subsection 4.11(g), (ii) notifying the Trustee of prospective purchasers and bids, (iii) selecting the purchaser of such portion of the Interest Rate Cap, and
(iv) instructing the selected purchaser (and/or the Trustee) to deposit the purchase price therefor into the Collection Account. The Trustee, upon receipt of the purchase price into the Collection Account, shall execute all documentation, prepared by the Servicer, necessary to effect the transfer of the Trust's rights under such portion of the Interest Rate Cap and to release the lien of the Trustee thereon and proceeds thereof. Funds deposited in the Collection Account in respect of the sale of all or a portion of a Class A Interest Rate Cap or a Class B Interest Rate Cap shall be applied on the next Transfer Date as, respectively, Class A Available Funds or Class B Available Funds in accordance with subsections 4.6(a) and (b).
Appears in 1 contract
Interest Rate Caps. (a) The Trustee hereby acknowledges ------------------ that the Class A Interest Rate Cap has been obtained for the benefit of the Class A Certificateholders and the Class B Interest Rate Cap for the benefit of the Class B Certificateholders. Each of the Interest Rate Caps provides that (i) the Trust shall not be required to make any payments thereunder and (ii) the Trust shall be entitled to receive a payment (determined in accordance with the respective Interest Rate Cap) from the Interest Rate Cap Provider on or prior to each Transfer Date if LIBOR plus [ %] [_____]% for the ---- related Interest Accrual Period exceeds the Class A Cap Rate or LIBOR plus [____%] _]% for the related Interest Accrual Period exceeds the Class B Cap Rate. The Interest Rate Cap Provider will make a payment on or prior to each Transfer Date to the Trustee, on behalf of the Trust, in an amount equal to the product of (i) the amount by which, in the case of the Class A Interest Rate Cap, LIBOR plus [____%] _]% exceeds the Class A Cap Rate or, in the case of the Class B Interest Rate Cap, LIBOR plus [____%] _]% exceeds the Class B Cap Rate, as applicable, (ii) the Class A Notional Amount or the Class B Notional Amount, as applicable, for the related Calculation Period, and (iii) the actual number of days in such Calculation Period divided by 360. Payments pursuant to the Class A Interest Rate Cap will be deposited in the Distribution Account for payment to the Class A Certificateholders on the following Distribution Date. Payments pursuant to the Class B Interest Rate Cap will be deposited in the Distribution Account for payment to the Class B Certificateholders on the following Distribution Date.
(b) In the event that the counterparty rating of the Interest Rate Cap Provider is withdrawn or reduced below Aa3 by Moody's or below AAA by Standard & Poor's or, with respect only to an Interest Rate Cap Provider for a Replacement Interest Rate Cap, either (i) the long term unsecured debt or long term certificate of deposit rating of such Interest Rate Cap Provider is withdrawn or reduced below Aa3 by Moody's or (iiI) the short term unsecured debt or short term certificate of deposit rating of the Interest Rate Cap Provider is withdrawn or reduced below A-1+ by Standard & Poor's or (II) the long term unsecured debt or long term certificate of deposit rating of the Interest Rate Cap Provider is withdrawn or reduced below Aa3 by Moody's, then within 30 60 days after such (in the case of a withdrawal or reduction by Standard & Poor's) or 30 days (in the case of a withdrawal or reduction by Moody's) after such decline in the creditworthiness of the Interest Rate Cap Provider as determined by the applicable Rating Agency (notice of which the Interest Rate Cap Provider is required, under each Interest Rate Cap, to shall provide to the Trustee, Moody's Trustee and Standard & Poor's the Servicer promptly upon obtaining knowledge thereof), the Interest Rate Cap Provider, at its own expense, is required, under each Interest Rate Cap, will either to (x) obtain a Replacement Interest Rate Cap for each such Interest Rate Cap to under which it is then currently a party an obligor or (y) enter into or establish, with respect to each such Interest Rate Cap, any other arrangement satisfactory to Moody's and Standard & Poor's, including collateral, guarantees or letters of credit, which arrangement will result in Moody's and Standard & Poor's not reducing or withdrawing the ratings of the Class A Certificates or the Class B Certificates in effect immediate prior to the ratings downgrade of the Interest Rate Cap Provider (a "Qualified Substitute Arrangement"). Upon receipt of notice of any such reduction or withdrawal, the Trustee, at the direction of the Servicer, shall, unless shall at its option either (i) with the prior written confirmation of the applicable Rating Agency that such action will not result in a Replacement Interest Rate Cap Provider reduction or Qualified Substitute Arrangement has theretofore been established withdrawal of the rating of the Class A Certificates or obtainedthe Class B Certificates, use its best efforts to establish or obtain or (1) cause the Interest Rate Cap Provider to establish pledge securities in the manner provided by applicable law or obtain(2) otherwise cause to be pledged securities, with respect to which in each case shall be held by the Trustee, its custodian, or its agent free and clear of the Lien of any third party, in a manner conferring on the Trustee a perfected first Lien in such securities securing the Interest Rate Cap Provider's performance of its obligations under the applicable Interest Rate Cap or Caps, or (ii) provided that, for each Interest Rate Cap under which such Interest Rate CapCap Provider is then currently an obligor, a Replacement Interest Rate Cap or Qualified Substitute Arrangement; provided, however, that in -------- ------- Arrangement meeting the event at any time any Qualified Substitute Arrangement established pursuant requirements of Section 4.11(c) has been obtained or will be obtained prior to this Section 4.11 or pursuant to simultaneously with the applicable termination of such Interest Rate Cap shall cease pursuant to be satisfactory to the Rating Agency or shall terminate prior to the Class A Scheduled Payment Date clause (in the case of a Qualified Substitute Arrangement with respect to the Class A Interest Rate Cap) or the Class B Scheduled Payment Date (in the case of a Qualified Substitute Arrangement with respect to the Class B Interest Rate Cap), then the provisions of this Section 4.11(b) shall again be applied and in connection therewith the 30-day period referred to above shall commence on the date the Servicer receives notice of such cessation or termination, as the case may be. Subject to Section 4.11(cB) below, the Trustee shall, with respect to any Interest Rate Cap for which a Replacement Interest Rate Cap or Qualified Substitute Arrangement has been or (with respect to clauses (A), (C) and (D) below) will be obtained, (A) timely provide any written notice required thereby to the Interest Rate Cap Provider of its intention to terminate the Interest Rate Cap within such 30-day period or 60-day period, as applicable, and (B) terminate such Interest Rate Cap within such 30-day period or 60-day period, (C) as applicable, request the payment to it of all amounts due to the Trust under such Interest Rate Cap through the termination date and (D) deposit any such amounts so received, on the day of receipt, to the Collection Account for application as Finance Charge Receivables for the benefit of the applicable Class of Certificateholders, or (iii) use reasonable efforts to establish any other arrangement satisfactory to the Rating Agency including collateral, guarantees or letters of credit, which arrangement will result in the applicable Rating Agency not reducing or withdrawing the then rating of the Class A Certificates or the Class B Certificates (a "Qualified Substitute Arrangement"); provided, -------- however, that in the event at any time any alternative arrangement established ------- pursuant to clause (x) or clause (y) of the preceding sentence or pursuant to clause (i) or clause (iii) of this sentence shall cease to be satisfactory to the Rating Agency or shall terminate prior to the Class B Scheduled Payment Date, then the provisions of this Section 4.11(b) shall again be applied and in connection therewith the 30-day period or 60-day period, as applicable, referred to above shall commence on the date the Servicer receives notice of such cessation or termination, as the case may be.
(c) Unless an alternative arrangement pursuant to clause (x) or (y)(i) of Section 4.11(b) is being established, the Trustee, at the direction of the Servicer shall use its best efforts to obtain with respect to each Interest Rate Cap referenced in Section 4.11(b) a Replacement Interest Rate Cap or Qualified Substitute Arrangement meeting the requirements of this Section 4.11(c) during the 30-day period referred to in Section 4.11(b). The Trustee shall not at any time terminate any such Interest Rate Cap (including any Replacement Interest Rate Cap or Qualified Substitute Arrangement with respect thereto) unless, prior to or simultaneously with the termination thereof, the Interest Rate Cap Provider, the Trustee or the Servicer has obtained or shall obtain (i) a Replacement Interest Rate Cap or Qualified Substitute Arrangement with respect thereto, (ii) to the extent applicable, an Opinion of Counsel as to the due authorization, execution, delivery, validity and enforceability of such Replacement Interest Rate Cap or Qualified Substitute Arrangement, as the case may be, and (iii) a letter from each of Moody's and Standard & Poor's the Rating Agency confirming that the termination of such Interest Rate Cap and its replacement with such Replacement Interest Rate Cap or Qualified Substitute Arrangement will not result in a reduction or withdrawal of adversely affect its rating of the Class A Certificates or the Class B Certificates. Notwithstanding anything to the contrary in Section 4.11(b) above, the Trustee shall not at any time terminate any such Interest Rate Cap (or such Replacement Interest Rate Cap or Qualified Substitute Arrangement with respect thereto) that comprises all or a portion of any Qualified Substitute Arrangement established pursuant to subsection 4.11(b) unless the latter Qualified Substitute Arrangement has been or is required to be terminated pursuant to this Section 4.11.
(d) The Servicer shall notify the Trustee, the Rating Agency and the Collateral Interest Holder within five Business Days after obtaining knowledge that the long term unsecured debt or the long term certificate of deposit rating of the Interest Rate Cap Provider has been withdrawn or reduced by Moody's or the short-term unsecured debt or short-term certificate of deposit rating of the Interest Rate Cap Provider has been withdrawn or reduced by Standard & Poor'sPoors.
(e) Notwithstanding the foregoing, the Servicer may at any time obtain a Replacement Interest Rate Cap, provided that the Servicer delivers to the Trustee (i) an Opinion of Counsel as to the due authorization, execution and delivery and validity and enforceability of such Replacement Interest Rate Cap and (ii) a letter from each of Moody's and Standard & Poor's the Rating Agency confirming that the termination of the then current Interest Rate Cap and its replacement with such Replacement Interest Rate Cap will not adversely affect its rating of the Class A Certificates or the Class B Certificates.
(f) The Trustee hereby appoints the Interest Rate Cap Provider to perform the duties of the calculation agent under the Interest Rate Cap, subject to the terms of the Interest Rate Cap and to any subsequent replacement of the Interest Rate Cap pursuant to this Section 4.11, and the Interest Rate Cap Provider accepts such appointment. The Trustee shall, at the direction of the Servicer, request a copy of the audited annual consolidated financial statements of the Interest Cap Provider, prepared in accordance with accounting principles that are generally accepted in its place of domicile.
(g) The Trustee, on behalf of the Certificateholders, shall have the right (during the Amortization Period) to, and upon notification from the Servicer shall, sell all or a portion of the Interest Rate Caps subject to the following conditions having been met:
(i) The Notional Amount of the unsold portion of each Interest Rate Cap remaining as an asset of the Trust shall at least equal the Class A Adjusted Investor Interest, in the case of the Class A Interest Rate Cap, and the Class B Investor Interest, in the case of the Class B Interest Rate Cap, outstanding as of the date of such sale; and
(ii) The Trustee shall have received written confirmation from the Rating Agency that such Such sale will not result in a reduction or withdrawal of the then current rating on the relevant class of Certificates by the Rating Agency.
(h) . The Servicer shall have the duty of (i) obtaining a fair market value price for the sale of the Trust's rights under any portion of an Interest Rate Cap sold pursuant to the subsection 4.11(g)Cap, (ii) notifying the Trustee of prospective purchasers and bids, (iii) selecting the purchaser of such portion of the Interest Rate Cap, and
(iv) and instructing the selected purchaser (and/or the Trustee) to deposit the purchase price therefor into the Collection Account. The Trustee, upon receipt of the purchase price into the Collection Account, shall execute all documentation, prepared by the Servicer, necessary to effect the transfer of the Trust's rights under such portion of the Interest Rate Cap and to release the lien of the Trustee thereon on the Interest Rate Cap and proceeds thereof. Funds deposited in the Collection Account in respect of the sale of all or a portion of a Class A Interest Rate Cap or a Class B Interest Rate Cap shall be applied on the next Transfer Date as, respectively, Class A Available Funds or Class B Available Funds in accordance with subsections 4.6(a) and through (bc).
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Peoples Bank Credit Card Master Trust)
Interest Rate Caps. (a) The Trustee hereby acknowledges that the Class A Interest Rate Cap has been obtained for the benefit of the Class A Certificateholders and the Class B Interest Rate Cap for the benefit of the Class B Certificateholders. Each of the Interest Rate Caps provides that (i) the Trust shall not be required to make any payments thereunder and (ii) the Trust shall be entitled to receive a payment (determined in accordance with the respective Interest Rate Cap) from the Interest Rate Cap Provider on or prior to each Transfer Date if LIBOR plus [ %] [____]% for the ---- related Interest Accrual Period exceeds the Class A Cap Rate or LIBOR plus [____%] ]% for the related Interest Accrual Period exceeds the Class B Cap Rate. The Interest Rate Cap Provider will make a payment on or prior to each Transfer Date to the Trustee, on behalf of the Trust, in an amount equal to the product of (i) the amount by which, in the case of the Class A Interest Rate Cap, LIBOR plus [____%] ]% exceeds the Class A Cap Rate or, in the case of the Class B Interest Rate Cap, LIBOR plus [____%] ]% exceeds the Class B Cap Rate, as applicable, (ii) the Class A Notional Amount or the Class B Notional Amount, as applicable, for the related Calculation Period, and (iii) the actual number of days in such Calculation Period divided by 360. Payments pursuant to the Class A Interest Rate Cap will be deposited in the Distribution Account for payment to the Class A Certificateholders on the following Distribution Date. Payments pursuant to the Class B Interest Rate Cap will be deposited in the Distribution Account for payment to the Class B Certificateholders on the following Distribution Date.
(b) In the event that the counterparty rating of the Interest Rate Cap Provider is withdrawn or reduced below Aa3 by Moody's ▇▇▇▇▇'▇ or below AAA by Standard & Poor's or, with respect only to an Interest Rate Cap Provider for a Replacement Interest Rate Cap, (i) the long term unsecured debt or long term certificate of deposit rating of such Interest Rate Cap Provider is withdrawn or reduced below Aa3 by Moody's ▇▇▇▇▇'▇ or (ii) the short term unsecured debt or short term certificate of deposit rating of the Interest Rate Cap Provider is withdrawn or reduced below A-1+ by Standard & Poor's, then within 30 days after such withdrawal or reduction (notice of which the Interest Rate Cap Provider is required, under each Interest Rate Cap, to provide to the Trustee, Moody's ▇▇▇▇▇'▇ and Standard & Poor's promptly upon obtaining knowledge thereof and notice of which the Trustee shall provide to the Servicer and Fitch within two Business Days after receipt thereof), the Interest Rate Cap Provider, at its own expense, is required, under each Interest Rate Cap, either to (x) obtain a Replacement Interest Rate Cap for each such Interest Rate Cap to which it is then currently a party or (y) enter into or establish, with respect to each such Interest Rate Cap, any other arrangement satisfactory to Moody's ▇▇▇▇▇'▇ and Standard & Poor's, including collateral, guarantees or letters of credit, which arrangement will result in Moody's ▇▇▇▇▇'▇ and Standard & Poor's not reducing or withdrawing the ratings of the Class A Certificates or the Class B Certificates in effect immediate prior to the ratings downgrade of the Interest Rate Cap Provider (a "Qualified Substitute Arrangement"). Upon receipt of notice of any such reduction or withdrawal, the Trustee, at the direction of the Servicer, shall, unless such a Replacement Interest Rate Cap Provider or Qualified Substitute Arrangement has theretofore been established or obtained, use its best efforts to establish or obtain or cause the Interest Rate Cap Provider to establish or obtain, with respect to each such Interest Rate Cap, a Replacement Interest Rate Cap or Qualified Substitute Arrangement; provided, however, that in -------- ------- the event at any time any Qualified Substitute Arrangement established pursuant to this Section 4.11 or pursuant to the applicable Interest Rate Cap shall cease to be satisfactory to the Rating Agency or shall terminate prior to the Class A Scheduled Payment Date (in the case of a Qualified Substitute Arrangement with respect to the Class A Interest Rate Cap) or the Class B Scheduled Payment Date (in the case of a Qualified Substitute Arrangement with respect to the Class B Interest Rate Cap), then the provisions of this Section 4.11(b) shall again be applied and in connection therewith the 30-day period referred to above shall commence on the date the Servicer receives notice of such cessation or termination, as the case may be. Subject to Section 4.11(c) below, the Trustee shall, with respect to any Interest Rate Cap for which a Replacement Interest Rate Cap or Qualified Substitute Arrangement has been or (with respect to clauses (A), (C) and (D) below) will be obtained, (A) timely provide any written notice required thereby to the Interest Rate Cap Provider of its intention to terminate the Interest Rate Cap within such 30-day period, (B) terminate such Interest Rate Cap within such 30-day period, (C) request the payment to it of all amounts due to the Trust under such Interest Rate Cap through the termination date and (D) deposit any such amounts so received, on the day of receipt, to the Collection Account for application as Finance Charge Receivables for the benefit of the applicable Class of Certificateholders.
(c) The Trustee shall not at any time terminate any Interest Rate Cap (including any Replacement Interest Rate Cap or Qualified Substitute Arrangement with respect thereto) unless, prior to or simultaneously with the termination thereof, the Interest Rate Cap Provider, the Trustee or the Servicer has obtained or shall obtain (i) a Replacement Interest Rate Cap or Qualified Substitute Arrangement with respect thereto, (ii) to the extent applicable, an Opinion of Counsel as to the due authorization, execution, delivery, validity and enforceability of such Replacement Interest Rate Cap or Qualified Substitute Arrangement, as the case may be, and (iii) a letter from each of Moody's ▇▇▇▇▇'▇ and Standard & Poor's confirming that the termination of such Interest Rate Cap and its replacement with such Replacement Interest Rate Cap or Qualified Substitute Arrangement will not result in a reduction or withdrawal of its rating of the Class A Certificates or the Class B Certificates. Notwithstanding anything to the contrary in Section 4.11(b) above, the Trustee shall not at any time terminate any such Interest Rate Cap (or such Replacement Interest Rate Cap or Qualified Substitute Arrangement with respect thereto) that comprises all or a portion of any Qualified Substitute Arrangement established pursuant to subsection 4.11(b) unless the latter Qualified Substitute Arrangement has been or is required to be terminated pursuant to this Section 4.11.
(d) The Servicer shall notify the Trustee, the Rating Agency and the Collateral Interest Holder within five Business Days after obtaining knowledge that the long term unsecured debt or the long term certificate of deposit rating of the Interest Rate Cap Provider has been withdrawn or reduced by Moody's ▇▇▇▇▇'▇ or Standard & Poor's.
(e) Notwithstanding the foregoing, the Servicer may at any time obtain a Replacement Interest Rate Cap, provided that the Servicer delivers to the Trustee (i) an Opinion of Counsel as to the due authorization, execution and delivery and validity and enforceability of such Replacement Interest Rate Cap and (ii) a letter from each of Moody's ▇▇▇▇▇'▇ and Standard & Poor's confirming that the termination of the then current Interest Rate Cap and its replacement with such Replacement Interest Rate Cap will not adversely affect its rating of the Class A Certificates or the Class B Certificates.
(f) The Trustee hereby appoints the Interest Rate Cap Provider to perform the duties of the calculation agent under the Interest Rate Cap, subject to the terms of the Interest Rate Cap and to any subsequent replacement of the Interest Rate Cap pursuant to this Section 4.11, and the Interest Rate Cap Provider accepts such appointment. The Trustee shall, at the direction of the Servicer, request a copy of the audited annual consolidated financial statements of the Interest Cap Provider, prepared in accordance with accounting principles that are generally accepted in its place of domicile.
(g) The Trustee, on behalf of the Certificateholders, shall have the right to, and upon notification from the Servicer shall, sell all or a portion of the Interest Rate Caps subject to the following conditions having been met:
(i) The Notional Amount of the unsold portion of each Interest Rate Cap remaining as an asset of the Trust shall at least equal the Class A Adjusted Investor Interest, in the case of the Class A Interest Rate Cap, and the Class B Investor Interest, in the case of the Class B Interest Rate Cap, outstanding as of the date of such sale; and
(ii) The Trustee shall have received written confirmation from the Rating Agency that such sale will not result in a reduction or withdrawal of the then current rating on the relevant class of Certificates by the Rating Agency.
(h) The Servicer shall have the duty of (i) obtaining a fair market value price for the sale of the Trust's rights under any portion of an Interest Rate Cap sold pursuant to the subsection 4.11(g), (ii) notifying the Trustee of prospective purchasers and bids, (iii) selecting the purchaser of such portion of the Interest Rate Cap, and
and (iv) instructing the selected purchaser (and/or the Trustee) to deposit the purchase price therefor into the Collection Account. The Trustee, upon receipt of the purchase price into the Collection Account, shall execute all documentation, prepared by the Servicer, necessary to effect the transfer of the Trust's rights under such portion of the Interest Rate Cap and to release the lien of the Trustee thereon and proceeds thereof. Funds deposited in the Collection Account in respect of the sale of all or a portion of a Class A Interest Rate Cap or a Class B Interest Rate Cap shall be applied on the next Transfer Date as, respectively, Class A Available Funds or Class B Available Funds in accordance with subsections 4.6(a) and (b).
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Peoples Bank Credit Card Master Trust)
Interest Rate Caps. (a) The Trustee hereby acknowledges that the Class A Interest Rate Cap has been obtained for the benefit of the Class A Certificateholders and the Class B Interest Rate Cap for the benefit of the Class B Certificateholders. Each of the Interest Rate Caps provides that (i) the Trust shall not be required to make any payments thereunder and (ii) the Trust shall be entitled to receive a payment (determined in accordance with the respective Interest Rate Cap) from the Interest Rate Cap Provider on or prior to each Transfer Date if LIBOR plus [ %] 0.29% for the ---- related Interest Accrual Period exceeds the Class A Cap Rate or LIBOR plus [____%] 0.58% for the related Interest Accrual Period exceeds the Class B Cap Rate. The Interest Rate Cap Provider will make a payment on or prior to each Transfer Date to the Trustee, on behalf of the Trust, in an amount equal to the product of (i) the amount by which, in the case of the Class A Interest Rate Cap, LIBOR plus [____%] 0.29% exceeds the Class A Cap Rate or, in the case of the Class B Interest Rate Cap, LIBOR plus [____%] 0.58% exceeds the Class B Cap Rate, as applicable, (ii) the Class A Notional Amount or the Class B Notional Amount, as applicable, for the related Calculation Period, and (iii) the actual number of days in such Calculation Period divided by 360. Payments pursuant to the Class A Interest Rate Cap will be deposited in the Distribution Account for payment to the Class A Certificateholders on the following Distribution Date. Payments pursuant to the Class B Interest Rate Cap will be deposited in the Distribution Account for payment to the Class B Certificateholders on the following Distribution Date.
(b) In the event that the financial program or counterparty rating of the Interest Rate Cap Provider is withdrawn or reduced below Aa3 by Moody's or below AAA ▇▇▇▇▇'▇, AA+ by Standard & Poor's 's, or, in the event that Fitch rates the Interest Rate Cap Provider, AA- by Fitch or, with respect only to an Interest Rate Cap Provider for a Replacement Interest Rate Cap, (i) the long term unsecured debt or long term certificate of deposit rating of such Interest Rate Cap Provider is withdrawn or reduced below Aa3 by Moody's ▇▇▇▇▇'▇ or AA- by Fitch or (ii) the short term unsecured debt or short term certificate of deposit rating of the Interest Rate Cap Provider is withdrawn or reduced below A-1+ by Standard & Poor's, then within 30 days after such withdrawal or reduction (notice of which the Interest Rate Cap Provider is required, under each Interest Rate Cap, to provide to the Trustee, Moody's 's, Fitch, and Standard & Poor's promptly upon obtaining knowledge thereof and notice of which the Trustee shall provide to the Servicer within two Business Days after receipt thereof), the Interest Rate Cap Provider, at its own expense, is required, under each Interest Rate Cap, either to (x) obtain a Replacement Interest Rate Cap for each such Interest Rate Cap to which it is then currently a party or (y) enter into or establish, with respect to each such Interest Rate Cap, any other arrangement satisfactory to Moody's 's, Fitch, and Standard & Poor's, including including, but not limited to, collateral, guarantees or letters of credit, which arrangement will result in Moody's ▇▇▇▇▇'▇, Fitch and Standard & Poor's not reducing or withdrawing the ratings of the Class A Certificates or the Class B Certificates in effect immediate immediately prior to the ratings downgrade of the Interest Rate Cap Provider as evidenced by written confirmations of such ratings (a "Qualified Substitute Arrangement"). Upon receipt of notice of any such reduction or withdrawal, the Trustee, at the direction of the Servicer, shall, unless such a Replacement Interest Rate Cap Provider or Qualified Substitute Arrangement has theretofore been established or obtained, use its best efforts to establish or obtain or cause the Interest Rate Cap Provider to establish or obtain, with respect to each such Interest Rate Cap, a Replacement Interest Rate Cap or Qualified Substitute Arrangement; provided, however, that in -------- ------- the event at -------- ------- any time any Qualified Substitute Arrangement established pursuant to this Section 4.11 or pursuant to the applicable Interest Rate Cap shall cease to be satisfactory to the Rating Agency or shall terminate prior to the Class A Scheduled Payment Date (in the case of a Qualified Substitute Arrangement with respect to the Class A Interest Rate Cap) or the Class B Scheduled Payment Date (in the case of a Qualified Substitute Arrangement with respect to the Class B Interest Rate Cap), then the provisions of this Section 4.11(b) shall again be applied and in connection therewith the 30-day period referred to above shall commence on the date the Servicer receives notice of such cessation or termination, as the case may be. Subject to Section 4.11(c) below, the Trustee shall, with respect to any Interest Rate Cap for which a Replacement Interest Rate Cap or Qualified Substitute Arrangement has been or (with respect to clauses (A), (C) and (D) below) will be obtained, (A) timely provide any written notice required thereby to the Interest Rate Cap Provider of its intention to terminate the Interest Rate Cap within such 30-day period, (B) terminate such Interest Rate Cap within such 30-day period, (C) request the payment to it of all amounts due to the Trust under such Interest Rate Cap through the termination date and (D) deposit any such amounts so received, on the day of receipt, to the Collection Account for application as Finance Charge Receivables for the benefit of the applicable Class of Certificateholders.
(c) The Trustee shall not at any time terminate any Interest Rate Cap (including any Replacement Interest Rate Cap or Qualified Substitute Arrangement with respect thereto) unless, prior to or simultaneously with the termination thereof, the Interest Rate Cap Provider, the Trustee or the Servicer has obtained or shall concurrently obtain (i) a Replacement Interest Rate Cap or Qualified Substitute Arrangement with respect thereto, (ii) to the extent applicable, an Opinion of Counsel as to the due authorization, execution, delivery, validity and enforceability of such Replacement Interest Rate Cap or Qualified Substitute Arrangement, as the case may be, and (iii) a letter from each of Moody's 's, Fitch, and Standard & Poor's confirming that the termination of such Interest Rate Cap and its replacement with such Replacement Interest Rate Cap or Qualified Substitute Arrangement will not result in a reduction or withdrawal of its rating of the Class A Certificates or the Class B Certificates. Notwithstanding anything to the contrary in Section 4.11(b) above, the Trustee shall not at any time terminate any such Interest Rate Cap (or such Replacement Interest Rate Cap or Qualified Substitute Arrangement with respect thereto) that comprises all or a portion of any Qualified Substitute Arrangement established pursuant to subsection 4.11(b) unless the latter Qualified Substitute Arrangement has been or is required to be terminated pursuant to this Section 4.11.
(d) The Servicer shall notify the Trustee, the Rating Agency and the Collateral Interest Holder within five Business Days after obtaining knowledge that the long term unsecured debt or the long term certificate of deposit rating of the Interest Rate Cap Provider has been withdrawn or reduced by Moody's ▇▇▇▇▇'▇, Fitch or Standard & Poor's.
(e) Notwithstanding the foregoing, the Servicer may at any time obtain a Replacement Interest Rate Cap, provided that the Servicer delivers to the Trustee (i) an Opinion of Counsel as to the due authorization, execution and delivery and validity and enforceability of such Replacement Interest Rate Cap and (ii) a letter from each of Moody's ▇▇▇▇▇'▇, Fitch and Standard & Poor's confirming that the termination of the then current Interest Rate Cap and its replacement with such Replacement Interest Rate Cap will not adversely affect its then current rating of the Class A Certificates or the Class B Certificates.
(f) The Trustee hereby appoints the Interest Rate Cap Provider to perform the duties of the calculation agent under the Interest Rate Cap, subject to the terms of the Interest Rate Cap and to any subsequent replacement of the Interest Rate Cap pursuant to this Section 4.11, and the Interest Rate Cap Provider accepts such appointment. The Trustee shall, at the direction of the Servicer, request request, if ▇▇▇▇▇▇▇ Mitsui is the Interest Rate Cap Provider, a copy of the annual audited balance sheet of the Interest Cap Provider, prepared in accordance with accounting principles that are generally accepted in its place of domicile and a copy of the annual report of the Group and, if a Replacement Interest Rate Cap is obtained, a copy of the audited annual consolidated financial statements or the annual audited balance sheet, as applicable, of the Interest Rate Cap Provider, Provider prepared in accordance with accounting principles that are generally accepted in its place of domicile.
(g) The Trustee, on behalf of the Certificateholders, shall have the right to, and upon notification from the Servicer shall, sell all or a portion of the Interest Rate Caps subject to the following conditions having been met:
(i) The Notional Amount of the unsold portion of each Interest Rate Cap remaining as an asset of the Trust shall at least equal the Class A Adjusted Investor Interest, in the case of the Class A Interest Rate Cap, and the Class B Investor Interest, in the case of the Class B Interest Rate Cap, outstanding as of the date of such sale; and
(ii) The Trustee shall have received written confirmation from the each Rating Agency that such sale will not result in a reduction or withdrawal of the its then current rating on the relevant any class of rated Certificates by the such Rating Agency.
(h) The Servicer shall have the duty of (i) obtaining a fair market value price for the sale of the Trust's rights under any portion of an Interest Rate Cap sold pursuant to the subsection 4.11(g), (ii) notifying the Trustee of prospective purchasers and bids, (iii) selecting the purchaser of such portion of the Interest Rate Cap, and
and (iv) instructing the selected purchaser (and/or the Trustee) to deposit the purchase price therefor into the Collection Account. The Trustee, upon receipt of the purchase price into the Collection Account, shall execute all documentation, prepared by the Servicer, necessary to effect the transfer of the Trust's rights under such portion of the Interest Rate Cap and to release the lien of the Trustee thereon and proceeds thereof. Funds deposited in the Collection Account in respect of the sale of all or a portion of a Class A Interest Rate Cap or a Class B Interest Rate Cap shall be applied on the next Transfer Date as, respectively, Class A Available Funds or Class B Available Funds in accordance with subsections 4.6(a) and (b).
(i) The Interest Rate Cap Provider may, at its sole cost and expense, transfer all of its rights, obligations and interests under the Class A Interest Rate Cap or Class B Interest Rate Cap, to any Affiliate of the Interest Rate Cap Provider or any Affiliate of the Group, provided that: -------- (i) such transferee (or if such transferee's obligations are guaranteed by a Credit Support Provider, such Credit Support Provider) must have either (A) a financial program or counterparty rating of at least AA+ by Standard & Poor's, at least Aa3 by ▇▇▇▇▇'▇ and, if rated by Fitch, AA-, or (B) a long term unsecured debt or long term certificate of deposit rating of at least Aa3 by ▇▇▇▇▇'▇ and, if rated by Fitch, at least AA- by Fitch and a short term unsecured debt or short term certificate of deposit rating of A- 1+ by Standard & Poor's; (ii) the Interest Rate Cap Provider shall have obtained the prior written confirmation of each Rating Agency that such transfer will not result in the reduction or withdrawal of such Rating Agency's rating of the Series 1999-1 Certificates in effect immediately prior to such transfer; (iii) neither the Interest Rate Cap Provider nor the Trustee is required to pay to the other party an additional amount under Section 2(d)(i)(4) of the applicable Interest Rate Cap or to receive a payment from which an amount is required to be deducted or withheld for or on account of a Tax and no additional amount is required to be paid in respect of such Tax under Section 2(d)(i)(4) of the applicable Interest Rate Cap; (iv) such transfer will not result in a Potential Event of Default, Event of Default or Termination Event; (v) the Interest Rate Cap Provider pays all costs and expenses incurred by People's Bank, the Trust and the Trustee in connection with any proposed transfer by the Interest Rate Cap Provider and with the review, negotiation and execution and delivery of any documentation relating to such transfer and any modifications to the applicable Interest Rate Cap as a result of such transfer; and (vi) all documentation in connection with such transfer (including any guaranty) is acceptable to the Trustee.
Appears in 1 contract
Interest Rate Caps. (a) The Trustee hereby acknowledges that the Class A Interest Rate Cap has been obtained for the benefit of the Class A Certificateholders and the Class B Interest Rate Cap for the benefit of the Class B Certificateholders. Each of the Interest Rate Caps provides that (i) the Trust shall not be required to make any payments thereunder and (ii) the Trust shall be entitled to receive a payment (determined in accordance with the respective Interest Rate Cap) from the Interest Rate Cap Provider on or prior to each Transfer Date if LIBOR plus [ %] 0.14% for the ---- related Interest Accrual Period exceeds the Class A Cap Rate or LIBOR plus [____%] 0.34% for the related Interest Accrual Period exceeds the Class B Cap Rate. The Interest Rate Cap Provider will make a payment on or prior to each Transfer Date to the Trustee, on behalf of the Trust, in an amount equal to the product of (i) the amount by which, in the case of the Class A Interest Rate Cap, LIBOR plus [____%] 0.14% exceeds the Class A Cap Rate or, in the case of the Class B Interest Rate Cap, LIBOR plus [____%] 0.34% exceeds the Class B Cap Rate, as applicable, (ii) the Class A Notional Amount or the Class B Notional Amount, as applicable, for the related Calculation Period, and (iii) the actual number of days in such Calculation Period divided by 360. Payments pursuant to the Class A Interest Rate Cap will be deposited in the Distribution Account for payment to the Class A Certificateholders on the following Distribution Date. Payments pursuant to the Class B Interest Rate Cap will be deposited in the Distribution Account for payment to the Class B Certificateholders on the following Distribution Date.
(b) In the event that the counterparty rating of the Interest Rate Cap Provider is withdrawn or reduced below Aa3 by Moody's ▇▇▇▇▇'▇, ▇▇- by Fitch or below AAA by Standard & Poor's or, with respect only to an Interest Rate Cap Provider for a Replacement Interest Rate Cap, (i) the long term unsecured debt or long term certificate of deposit rating of such Interest Rate Cap Provider is withdrawn or reduced below Aa3 by Moody's or AA-by Fitch or (ii) the short term unsecured debt or short term certificate of deposit rating of the Interest Rate Cap Provider is withdrawn or reduced below A-1+ by Standard & Poor's, then within 30 days after such withdrawal or reduction (notice of which the Interest Rate Cap Provider is required, under each Interest Rate Cap, to provide to the Trustee, Moody's 's, Fitch, and Standard & Poor's promptly upon obtaining knowledge thereof and notice of which the Trustee shall provide to the Servicer within two Business Days after receipt thereof), the Interest Rate Cap Provider, at its own expense, is required, under each Interest Rate Cap, either to (x) obtain a Replacement Interest Rate Cap for each such Interest Rate Cap to which it is then currently a party or (y) enter into or establish, with respect to each such Interest Rate Cap, any other arrangement satisfactory to Moody's 's, Fitch, and Standard & Poor's, including collateral, guarantees or letters of credit, which arrangement will result in Moody's ▇▇▇▇▇'▇, Fitch and Standard & Poor's not reducing or withdrawing the ratings of the Class A Certificates or the Class B Certificates in effect immediate prior to the ratings downgrade of the Interest Rate Cap Provider (a "Qualified Substitute Arrangement"). Upon receipt of notice of any such reduction or withdrawal, the Trustee, at the direction of the Servicer, shall, unless such a Replacement Interest Rate Cap Provider or Qualified Substitute Arrangement has theretofore been established or obtained, use its best efforts to establish or obtain or cause the Interest Rate Cap Provider to establish or obtain, with respect to each such Interest Rate Cap, a Replacement Interest Rate Cap or Qualified Substitute Arrangement; provided, however, that in -------- ------- the event at any time any Qualified Substitute Arrangement established pursuant to this Section 4.11 or pursuant to the applicable Interest Rate Cap shall cease to be satisfactory to the Rating Agency or shall terminate prior to the Class A Scheduled Payment Date (in the case of a Qualified Substitute Arrangement with respect to the Class A Interest Rate Cap) or the Class B Scheduled Payment Date (in the case of a Qualified Substitute Arrangement with respect to the Class B Interest Rate Cap), then the provisions of this Section 4.11(b) shall again be applied and in connection therewith the 30-day period referred to above shall commence on the date the Servicer receives notice of such cessation or termination, as the case may be. Subject to Section 4.11(c) below, the Trustee shall, with respect to any Interest Rate Cap for which a Replacement Interest Rate Cap or Qualified Substitute Arrangement has been or (with respect to clauses (A), (C) and (D) below) will be obtained, (A) timely provide any written notice required thereby to the Interest Rate Cap Provider of its intention to terminate the Interest Rate Cap within such 30-day period, (B) terminate such Interest Rate Cap within such 30-day period, (C) request the payment to it of all amounts due to the Trust under such Interest Rate Cap through the termination date and (D) deposit any such amounts so received, on the day of receipt, to the Collection Account for application as Finance Charge Receivables for the benefit of the applicable Class of Certificateholders.
(c) The Trustee shall not at any time terminate any Interest Rate Cap (including any Replacement Interest Rate Cap or Qualified Substitute Arrangement with respect thereto) unless, prior to or simultaneously with the termination thereof, the Interest Rate Cap Provider, the Trustee or the Servicer has obtained or shall concurrently obtain (i) a Replacement Interest Rate Cap or Qualified Substitute Arrangement with respect thereto, (ii) to the extent applicable, an Opinion of Counsel as to the due authorization, execution, delivery, validity and enforceability of such Replacement Interest Rate Cap or Qualified Substitute Arrangement, as the case may be, and (iii) a letter from each of Moody's 's, Fitch, and Standard & Poor's confirming that the termination of such Interest Rate Cap and its replacement with such Replacement Interest Rate Cap or Qualified Substitute Arrangement will not result in a reduction or withdrawal of its rating of the Class A Certificates or the Class B Certificates. Notwithstanding anything to the contrary in Section 4.11(b) above, the Trustee shall not at any time terminate any such Interest Rate Cap (or such Replacement Interest Rate Cap or Qualified Substitute Arrangement with respect thereto) that comprises all or a portion of any Qualified Substitute Arrangement established pursuant to subsection 4.11(b) unless the latter Qualified Substitute Arrangement has been or is required to be terminated pursuant to this Section 4.11.
(d) The Servicer shall notify the Trustee, the Rating Agency and the Collateral Interest Holder within five Business Days after obtaining knowledge that the long term unsecured debt or the long term certificate of deposit rating of the Interest Rate Cap Provider has been withdrawn or reduced by Moody's 's, Fitch or Standard & Poor's.
(e) Notwithstanding the foregoing, the Servicer may at any time obtain a Replacement Interest Rate Cap, provided that the Servicer delivers to the Trustee (i) an Opinion of Counsel as to the due authorization, execution and delivery and validity and enforceability of such Replacement Interest Rate Cap and (ii) a letter from each of Moody's ▇▇▇▇▇'▇, Fitch and Standard & Poor's confirming that the termination of the then current Interest Rate Cap and its replacement with such Replacement Interest Rate Cap will not adversely affect its rating of the Class A Certificates or the Class B Certificates.
(f) The Trustee hereby appoints the Interest Rate Cap Provider to perform the duties of the calculation agent under the Interest Rate Cap, subject to the terms of the Interest Rate Cap and to any subsequent replacement of the Interest Rate Cap pursuant to this Section 4.11, and the Interest Rate Cap Provider accepts such appointment. The Trustee shall, at the direction of the Servicer, request a copy of the audited annual consolidated financial statements of the Interest Cap Provider, prepared in accordance with accounting principles that are generally accepted in its place of domicile.
(g) The Trustee, on behalf of the Certificateholders, shall have the right to, and upon notification from the Servicer shall, sell all or a portion of the Interest Rate Caps subject to the following conditions having been met:
(i) The Notional Amount of the unsold portion of each Interest Rate Cap remaining as an asset of the Trust shall at least equal the Class A Adjusted Investor Interest, in the case of the Class A Interest Rate Cap, and the Class B Investor Interest, in the case of the Class B Interest Rate Cap, outstanding as of the date of such sale; and
(ii) The Trustee shall have received written confirmation from the Rating Agency that such sale will not result in a reduction or withdrawal of the then current rating on the relevant class of Certificates by the Rating Agency.
(h) The Servicer shall have the duty of (i) obtaining a fair market value price for the sale of the Trust's rights under any portion of an Interest Rate Cap sold pursuant to the subsection 4.11(g), (ii) notifying the Trustee of prospective purchasers and bids, (iii) selecting the purchaser of such portion of the Interest Rate Cap, and
(iv) instructing the selected purchaser (and/or the Trustee) to deposit the purchase price therefor into the Collection Account. The Trustee, upon receipt of the purchase price into the Collection Account, shall execute all documentation, prepared by the Servicer, necessary to effect the transfer of the Trust's rights under such portion of the Interest Rate Cap and to release the lien of the Trustee thereon and proceeds thereof. Funds deposited in the Collection Account in respect of the sale of all or a portion of a Class A Interest Rate Cap or a Class B Interest Rate Cap shall be applied on the next Transfer Date as, respectively, Class A Available Funds or Class B Available Funds in accordance with subsections 4.6(a) and (b).
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Peoples Bank Credit Card Master Trust)
Interest Rate Caps. (a) The Trustee hereby acknowledges that the Class A Interest Rate Cap has been obtained for the benefit of the Class A Certificateholders and the Class B Interest Rate Cap for the benefit of the Class B Certificateholders. Each of the Interest Rate Caps provides that (i) the Trust shall not be required to make any payments thereunder and (ii) the Trust shall be entitled to receive a payment (determined in accordance with the respective Interest Rate Cap) from the Interest Rate Cap Provider on or prior to each Transfer Date if LIBOR plus 0.[ %] ]% for the ---- related Interest Accrual Period exceeds the Class A Cap Rate or LIBOR plus [____%] 0.[ ]% for the related Interest Accrual Period exceeds the Class B Cap Rate. The Interest Rate Cap Provider will make a payment on or prior to each Transfer Date to the Trustee, on behalf of the Trust, in an amount equal to the product of (i) the amount by which, in the case of the Class A Interest Rate Cap, LIBOR plus [____%] 0.[ ]% exceeds the Class A Cap Rate or, in the case of the Class B Interest Rate Cap, LIBOR plus [____%] 0.[ ]% exceeds the Class B Cap Rate, as applicable, (ii) the Class A Notional Amount or the Class B Notional Amount, as applicable, for the related Calculation Period, and (iii) the actual number of days in such Calculation Period divided by 360. Payments pursuant to the Class A Interest Rate Cap will be deposited in the Distribution Account for payment to the Class A Certificateholders on the following Distribution Date. Payments pursuant to the Class B Interest Rate Cap will be deposited in the Distribution Account for payment to the Class B Certificateholders on the following Distribution Date.
(b) In the event that the counterparty rating of the Interest Rate Cap Provider is withdrawn or reduced below Aa3 by Moody's ▇▇▇▇▇'▇, ▇▇- by ▇▇▇▇▇ or below AAA by Standard & Poor's or, with respect only to an Interest Rate Cap Provider for a Replacement Interest Rate Cap, (i) the long term unsecured debt or long term certificate of deposit rating of such Interest Rate Cap Provider is withdrawn or reduced below Aa3 by Moody's ▇▇▇▇▇'▇ or AA- by Fitch or (ii) the short term unsecured debt or short term certificate of deposit rating of the Interest Rate Cap Provider is withdrawn or reduced below A-1+ by Standard & Poor's, then within 30 days after such withdrawal or reduction (notice of which the Interest Rate Cap Provider is required, under each Interest Rate Cap, to provide to the Trustee, Moody's 's, Fitch, and Standard & Poor's promptly upon obtaining knowledge thereof and notice of which the Trustee shall provide to the Servicer within two Business Days after receipt thereof), the Interest Rate Cap Provider, at its own expense, is required, under each Interest Rate Cap, either to (x) obtain a Replacement Interest Rate Cap for each such Interest Rate Cap to which it is then currently a party or (y) enter into or establish, with respect to each such Interest Rate Cap, any other arrangement satisfactory to Moody's 's, Fitch, and Standard & Poor's, including collateral, guarantees or letters of credit, which arrangement will result in Moody's ▇▇▇▇▇'▇, Fitch and Standard & Poor's not reducing or withdrawing the ratings of the Class A Certificates or the Class B Certificates in effect immediate prior to the ratings downgrade of the Interest Rate Cap Provider (a "Qualified Substitute Arrangement"). Upon receipt of notice of any such reduction or withdrawal, the Trustee, at the direction of the Servicer, shall, unless such a Replacement Interest Rate Cap Provider or Qualified Substitute Arrangement has theretofore been established or obtained, use its best efforts to establish or obtain or cause the Interest Rate Cap Provider to establish or obtain, with respect to each such Interest Rate Cap, a Replacement Interest Rate Cap or Qualified Substitute Arrangement; provided, however, that in -------- ------- the event at any time any Qualified -------- ------- Substitute Arrangement established pursuant to this Section 4.11 or pursuant to the applicable Interest Rate Cap shall cease to be satisfactory to the Rating Agency or shall terminate prior to the Class A Scheduled Payment Date (in the case of a Qualified Substitute Arrangement with respect to the Class A Interest Rate Cap) or the Class B Scheduled Payment Date (in the case of a Qualified Substitute Arrangement with respect to the Class B Interest Rate Cap), then the provisions of this Section 4.11(b) shall again be applied and in connection therewith the 30-day period referred to above shall commence on the date the Servicer receives notice of such cessation or termination, as the case may be. Subject to Section 4.11(c) below, the Trustee shall, with respect to any Interest Rate Cap for which a Replacement Interest Rate Cap or Qualified Substitute Arrangement has been or (with respect to clauses (A), (C) and (D) below) will be obtained, (A) timely provide any written notice required thereby to the Interest Rate Cap Provider of its intention to terminate the Interest Rate Cap within such 30-day period, (B) terminate such Interest Rate Cap within such 30-day period, (C) request the payment to it of all amounts due to the Trust under such Interest Rate Cap through the termination date and (D) deposit any such amounts so received, on the day of receipt, to the Collection Account for application as Finance Charge Receivables for the benefit of the applicable Class of Certificateholders.
(c) The Trustee shall not at any time terminate any Interest Rate Cap (including any Replacement Interest Rate Cap or Qualified Substitute Arrangement with respect thereto) unless, prior to or simultaneously with the termination thereof, the Interest Rate Cap Provider, the Trustee or the Servicer has obtained or shall concurrently obtain (i) a Replacement Interest Rate Cap or Qualified Substitute Arrangement with respect thereto, (ii) to the extent applicable, an Opinion of Counsel as to the due authorization, execution, delivery, validity and enforceability of such Replacement Interest Rate Cap or Qualified Substitute Arrangement, as the case may be, and (iii) a letter from each of Moody's 's, Fitch, and Standard & Poor's confirming that the termination of such Interest Rate Cap and its replacement with such Replacement Interest Rate Cap or Qualified Substitute Arrangement will not result in a reduction or withdrawal of its rating of the Class A Certificates or the Class B Certificates. Notwithstanding anything to the contrary in Section 4.11(b) above, the Trustee shall not at any time terminate any such Interest Rate Cap (or such Replacement Interest Rate Cap or Qualified Substitute Arrangement with respect thereto) that comprises all or a portion of any Qualified Substitute Arrangement established pursuant to subsection 4.11(b) unless the latter Qualified Substitute Arrangement has been or is required to be terminated pursuant to this Section 4.11.
(d) The Servicer shall notify the Trustee, the Rating Agency and the Collateral Interest Holder within five Business Days after obtaining knowledge that the long term unsecured debt or the long term certificate of deposit rating of the Interest Rate Cap Provider has been withdrawn or reduced by Moody's ▇▇▇▇▇'▇, Fitch or Standard & Poor's.
(e) Notwithstanding the foregoing, the Servicer may at any time obtain a Replacement Interest Rate Cap, provided that the Servicer delivers to the Trustee (i) an Opinion of Counsel as to the due authorization, execution and delivery and validity and enforceability of such Replacement Interest Rate Cap and (ii) a letter from each of Moody's ▇▇▇▇▇'▇, Fitch and Standard & Poor's confirming that the termination of the then current Interest Rate Cap and its replacement with such Replacement Interest Rate Cap will not adversely affect its rating of the Class A Certificates or the Class B Certificates.
(f) The Trustee hereby appoints the Interest Rate Cap Provider to perform the duties of the calculation agent under the Interest Rate Cap, subject to the terms of the Interest Rate Cap and to any subsequent replacement of the Interest Rate Cap pursuant to this Section 4.11, and the Interest Rate Cap Provider accepts such appointment. The Trustee shall, at the direction of the Servicer, request a copy of the audited annual consolidated financial statements of the Interest Cap Provider, prepared in accordance with accounting principles that are generally accepted in its place of domicile.
(g) The Trustee, on behalf of the Certificateholders, shall have the right to, and upon notification from the Servicer shall, sell all or a portion of the Interest Rate Caps subject to the following conditions having been met:
(i) The Notional Amount of the unsold portion of each Interest Rate Cap remaining as an asset of the Trust shall at least equal the Class A Adjusted Investor Interest, in the case of the Class A Interest Rate Cap, and the Class B Investor Interest, in the case of the Class B Interest Rate Cap, outstanding as of the date of such sale; and
(ii) The Trustee shall have received written confirmation from the Rating Agency that such sale will not result in a reduction or withdrawal of the then current rating on the relevant class of Certificates by the Rating Agency.
(h) The Servicer shall have the duty of (i) obtaining a fair market value price for the sale of the Trust's rights under any portion of an Interest Rate Cap sold pursuant to the subsection 4.11(g), (ii) notifying the Trustee of prospective purchasers and bids, (iii) selecting the purchaser of such portion of the Interest Rate Cap, and
(iv) instructing the selected purchaser (and/or the Trustee) to deposit the purchase price therefor into the Collection Account. The Trustee, upon receipt of the purchase price into the Collection Account, shall execute all documentation, prepared by the Servicer, necessary to effect the transfer of the Trust's rights under such portion of the Interest Rate Cap and to release the lien of the Trustee thereon and proceeds thereof. Funds deposited in the Collection Account in respect of the sale of all or a portion of a Class A Interest Rate Cap or a Class B Interest Rate Cap shall be applied on the next Transfer Date as, respectively, Class A Available Funds or Class B Available Funds in accordance with subsections 4.6(a) and (b).such
Appears in 1 contract