Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing: (a) any failure by the Servicer to make any payment, transfer or deposit or to give notice or instructions to the Indenture Trustee to make any required withdrawal or payment, transfer or deposit on the date the Servicer is required to do so under the terms of this Agreement, the Indenture or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Days; (b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement which has an Adverse Effect on the Noteholders of any Series, Class or Tranche and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06; (c) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an Adverse Effect on the rights of the Noteholders of any Series, Class or Tranche and which Adverse Effect continues for a period of 60 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates); (d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or (e) any other Servicer Default described in any Indenture Supplement. (a) to act as a Successor Servicer and receives an Officer's Certificate of the Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicer. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a "Service Transfer") and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset Pool, or which shall thereafter be received with respect to the Collateral, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trustee, the applicable Collateral Agent and each Transferor with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (First Usa Credit Card Master Trust)
Servicer Defaults. If any one of the following events (a "“Servicer Default"”) shall occur and be continuing:
(a) any failure by the Servicer to make any required payment, transfer or deposit or to give instructions or notice or instructions to the Indenture Trustee to make any required withdrawal or cause to be made such payment, transfer or deposit on or before the date the Servicer such payment, transfer or deposit or such instruction or notice is required to do so be made or given, as the case may be, under the terms of this Agreement, the Indenture or any Indenture Indenture, the 2025-2A SUBI Supplement, or within the applicable grace period2025-2A SUBI Servicing Agreement, which will not exceed 35 Business Days;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement which has an Adverse Effect on the Noteholders of any Seriesaggregate amount exceeding $50,000, Class or Tranche and which failure continues unremedied for a period of 60 days five (5) Business Days after the earlier of (i) the date on which written notice of such failure, requiring the same to be remedied, shall have been given by registered or certified mail to the Servicer by the Owner Issuer or the Indenture Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer, the Owner Trustee, Issuer and the Indenture Trustee by the Required Noteholders and (ii) the applicable Collateral Agent by Holders of Notes evidencing not less than 50% actual knowledge of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect Servicer thereof;
(or, with respect to b) any such failure that does not relate to all Series, Classes or Tranches, not less than 50% on the part of the aggregate unpaid principal amount Servicer duly to observe or perform any other covenants or agreements of all Series, Classes or Tranches to which such failure related); or the Servicer shall assign or delegate its duties under set forth in this Agreement, except the Indenture, the 2025-2A SUBI Supplement or the 2025-2A SUBI Servicing Agreement or in any certificate delivered by the Servicer pursuant to this Agreement, the 2025-2A SUBI Supplement, the 2025-2A SUBI Servicing Agreement or the Indenture, which failure has a material adverse effect on the interests of the Noteholders (as permitted determined by Sections 7.02the Threshold Noteholders) and which continues unremedied for a period of forty-five (45) days after the earlier of (i) the date on which notice of such failure, 7.05 requiring the same to be remedied, shall have been given by registered or certified mail to the Servicer by the Issuer or the Indenture Trustee, or to the Servicer, the Issuer and 7.06the Indenture Trustee by the Threshold Noteholders and (ii) the actual knowledge of the Servicer thereof;
(c) any representation, warranty or certification made by the Servicer in this Agreement, the Indenture, the 2025-2A SUBI Supplement or the 2025-2A SUBI Servicing Agreement or in any certificate delivered by the Servicer pursuant to this Agreement, the Indenture, the 2025-2A SUBI Supplement or the 2025-2A SUBI Servicing Agreement shall prove to have been incorrect when made, which made or deemed made and such failure has an Adverse Effect a material adverse effect on the rights of Noteholders (as determined by the Noteholders of any Series, Class or Tranche Threshold Noteholders) and which Adverse Effect continues unremedied SALE AND SERVICING AGREEMENT (RMIT 2025-2) - Page 30 DOCPROPERTY DOCXDOCID DMS=IManage Format=<<LIB>>/<<NUM>>v<<VER>> \* MERGEFORMAT LEGAL02/47538919v2 for a period of 60 forty-five (45) days after the earlier of (i) the date on which written a notice thereof, specifying such incorrect representation or warranty and requiring the same to be remedied, shall have been given by registered or certified mail to the Servicer by the Owner Trustee, Issuer or the Indenture Trustee or the applicable Collateral AgentTrustee, or to the Servicer, the Owner TrusteeIssuer, and the Indenture Trustee by the Threshold Noteholders and (ii) the actual knowledge of the Servicer thereof; or
(d) an Insolvency Event shall occur with respect to the Servicer; then, in the event of any Servicer Default, so long as a Servicer Default is continuing, the Indenture Trustee may (and upon the written direction of the Required Noteholders shall), by notice then given to the Servicer, the Issuer, the North Carolina Trust and the applicable Collateral Agent by the Holders of Notes evidencing not less than 50% Back-up Servicer (a “Termination Notice”) (i) terminate all of the aggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% rights and obligations of the aggregate unpaid principal amount Servicer as Servicer under this Agreement, the 2025-2A SUBI Supplement, the 2025-2A SUBI Servicing Agreement and the Indenture and (ii) direct the applicable party to terminate any power of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment of debt, marshalling of assets and liabilities or similar proceedings of or relating attorney granted to the Servicer or any Subservicer and direct such party to execute a new power of attorney to the Indenture Trustee or relating to all or substantially all its property, or a decree or order designee. The existence of a court Servicer Default may be waived with the consent of the Required Noteholders. Notwithstanding the foregoing, a delay in or agency failure of performance referred to under paragraph (a) above for an additional period of five (5) Business Days after the applicable grace period or supervisory authority having jurisdiction in referred to under paragraph (b) or (c) above for a period of forty-five (45) days after the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairsapplicable grace period, shall have been entered against not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such decree delay or order failure was caused by a Force Majeure Event. If, following the expiration of such incremental forty-five (45) day grace period in the case of a delay or failure of performance described in paragraph (b) or (c) above, the applicable delay or failure of performance remains outstanding but the Servicer continues to work diligently to remedy such delay or failure of performance, then the grace period shall have remained in force undischarged or unstayed be extended for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
further thirty (e30) any other Servicer Default described in any Indenture Supplement.
(a) to act as a Successor Servicer and receives an Officer's Certificate of days upon notice from the Servicer to the effect that Indenture Trustee. The preceding sentences will not relieve the Servicer cannot from using all commercially reasonable efforts to perform its obligations in good faith cure a timely manner in accordance with the terms of this Agreement and the Servicer Default which gave rise to shall provide the Termination NoticeIndenture Trustee, the Indenture Trustee shall assume Issuer and the role Depositor with an Officer’s Certificate giving prompt notice of Successor Servicersuch failure or delay, together with a description of its efforts so to perform its obligations. After receipt by the Servicer of a Termination Notice, and effective on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.02Servicing Transfer Date, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a "Service “Servicing Transfer"”) appointed by the Indenture Trustee (at the written direction of the Required Noteholders if the Successor Servicer is not the Back-up Servicer or the Indenture Trustee) pursuant to Section 8.02; and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperatecooperate promptly) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Servicing Transfer. The Servicer agrees to reasonably cooperate and to cause each Subservicer to reasonably cooperate (and each Subservicer agrees to cooperate) with the Indenture Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder and (ii) transferring SALE AND SERVICING AGREEMENT (RMIT 2025-2) - Page 31 DOCPROPERTY DOCXDOCID DMS=IManage Format=<<LIB>>/<<NUM>>v<<VER>> \* MERGEFORMAT LEGAL02/47538919v2 all duties and obligations of the Servicer hereunder to such Successor Servicer, including the transfer to such Successor Servicer of all authority of the Servicer to service and administer the Collateral Loans provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the or other applicable Asset PoolNote Account, or which shall thereafter be received with respect to the CollateralLoans, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the TrustServicer. The Servicer shall within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all its electronic records relating to the Loans, together with all other records, correspondence and documents necessary for the continued servicing and administration of the Collateral Loans in the manner and at such times as the Successor Servicer shall reasonably request. Notwithstanding the foregoing, the Servicer shall be allowed to retain a copy of all records, correspondence and documents provided to the Successor Servicer in compliance with the Servicer’s recordkeeping policies or Requirements of Law. The predecessor Servicer shall be responsible for all expenses incurred in transferring the servicing duties to the Successor Servicer. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer deems to be confidentialconfidential or give the Successor Servicer access to software or other intellectual property, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trustee, the applicable Collateral Agent and each Transferor with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Regional Management Corp.)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Master Servicer to make any payment, transfer or deposit or to give instructions or notice or instructions to the Indenture Trustee pursuant to make the terms of this Agreement or any required withdrawal Supplement on or before the date occurring five Business Days after the date such payment, transfer or deposit on the date the Servicer or such instruction or notice is required to do so be made or given, as the case may be, under the terms of this Agreement, the Indenture Agreement or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Days;
(b) failure on the part of the Master Servicer duly to observe or perform in any material respect any other covenants or agreements of the Master Servicer set forth in this Agreement or any Supplement which has an Adverse Effect on the Noteholders interests hereunder of the Investor Certificateholders of any Series, Series or Class or Tranche and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, and stated to be a "Notice of Servicer Default," shall have been given to the Master Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer, the Owner Trustee, the Indenture Trustee Master Servicer and the applicable Collateral Agent Trustee by Holders of Notes Investor Certificates evidencing not less more than 5025% of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect Aggregate Investor Amount (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 5025% of the aggregate unpaid principal amount Investor Amount of all Series, Classes or Tranches Series to which such failure relatedrelates); or the Master Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02Section 8.02 or 8.07, 7.05 and 7.06a Responsible Officer of the Trustee has actual knowledge of such delegation and such delegation continues unremedied for 15 days after the date on which written notice thereof, requiring the same to be remedied, and stated to be a "Notice of Servicer Default," shall have been given to the Master Servicer by the Trustee, or to the Master Servicer and the Trustee by Holders of Investor Certificates evidencing more than 25% of the Aggregate Investor Amount;
(c) any representation, warranty or certification made by the Master Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has an Adverse Effect on the rights of the Noteholders Investor Certificateholders of any Series, Series or Class or Tranche and which Adverse Effect continues to be incorrect in any material respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, and stated to be a "Notice of Servicer Default," shall have been given to the Master Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee Master Servicer and the applicable Collateral Agent Trustee by the Holders of Notes Investor Certificates evidencing not less more than 5025% of the aggregate unpaid principal amount of all Notes Aggregate Investor Amount (or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 5025% of the aggregate unpaid principal amount Investor Amount of all Series, Classes or Tranches Series to which such representation, warranty or certification relates);; or
(d) the Master Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings of or relating to the Master Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) any other Servicer Default described in any Indenture Supplement.
(a) to act as a Successor Servicer and receives an Officer's Certificate of the Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicer. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a "Service Transfer") and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset Pool, or which shall thereafter be received with respect to the Collateral, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trustee, the applicable Collateral Agent and each Transferor with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.substantially
Appears in 1 contract
Servicer Defaults. If any one of the following events (a "“Servicer Default"”) shall occur and be continuing:
(a) any failure by the Servicer to make any required payment, transfer or deposit or to give instructions or notice or instructions to the Indenture Trustee to make any required withdrawal or cause to be made such payment, transfer or deposit on or before the date the Servicer such payment, transfer or deposit or such instruction or notice is required to do so be made or given, as the case may be, under the terms of this Agreement, the Indenture or any Indenture Indenture, the 2022-1A SUBI Supplement, or within the applicable grace period2022-1A SUBI Servicing Agreement, which will not exceed 35 Business Days;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement which has an Adverse Effect on the Noteholders of any Seriesaggregate amount exceeding $50,000, Class or Tranche and which failure continues unremedied for a period of 60 days five (5) Business Days after the earlier of (i) the date on which written notice of such failure, requiring the same to be remedied, shall have been given by registered or certified mail to the Servicer by the Owner Issuer or the Indenture Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer, the Owner Trustee, Issuer and the Indenture Trustee by the Required Noteholders and (ii) the applicable Collateral Agent by Holders of Notes evidencing not less than 50% actual knowledge of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect Servicer thereof;
(or, with respect to b) any such failure that does not relate to all Series, Classes or Tranches, not less than 50% on the part of the aggregate unpaid principal amount Servicer duly to observe or perform any other covenants or agreements of all Series, Classes or Tranches to which such failure related); or the Servicer shall assign or delegate its duties under set forth in this Agreement, except the Indenture, the 2022-1A SUBI Supplement or the 2022-1A SUBI Servicing Agreement or in any certificate delivered by the Servicer pursuant to this Agreement, the 2022-1A SUBI Supplement, the 2022-1A SUBI Servicing Agreement or the Indenture, which failure has a material adverse effect on the interests of the Noteholders (as permitted determined by Sections 7.02the Threshold Noteholders) and which continues unremedied for a period of forty-five (45) days after the earlier of (i) the date on which notice of such failure, 7.05 requiring the same to be remedied, shall have been given by registered or certified mail to the Servicer by the Issuer or the Indenture Trustee, or to the Servicer, the Issuer and 7.06the Indenture Trustee by the Threshold Noteholders and (ii) the actual knowledge of the Servicer thereof;
(c) any representation, warranty or certification made by the Servicer in this Agreement, the Indenture, the 2022-1A SUBI Supplement or the 2022-1A SUBI Servicing Agreement or in any certificate delivered by the Servicer pursuant to this Agreement, the Indenture, the 2022-1A SUBI Supplement or the 2022-1A SUBI Servicing Agreement shall prove to have been incorrect when made, which made or deemed made and such failure has an Adverse Effect a material adverse effect on the rights of Noteholders (as determined by the Noteholders of any Series, Class or Tranche Threshold Noteholders) and which Adverse Effect continues unremedied for a period of 60 forty-five (45) days after the earlier of (i) the date on which written a notice thereof, specifying such incorrect representation or warranty and requiring the same to be remedied, shall have been given by registered or certified mail to the Servicer by the Owner Trustee, Issuer or the Indenture Trustee or the applicable Collateral AgentTrustee, or to the Servicer, the Owner TrusteeIssuer, and the Indenture Trustee by the Threshold Noteholders and (ii) the actual knowledge of the Servicer thereof; or
(d) an Insolvency Event shall occur with respect to the Servicer; then, in the event of any Servicer Default, so long as a Servicer Default is continuing, the Indenture Trustee may (and upon the written direction of the Required Noteholders shall), by notice then given to the Servicer, the Issuer, the North Carolina Trust and the applicable Collateral Agent by the Holders of Notes evidencing not less than 50% Back-up Servicer (a “Termination Notice”) (i) terminate all of the aggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% rights and obligations of the aggregate unpaid principal amount Servicer as Servicer under this Agreement, the 2022-1A SUBI Supplement, the 2022-1A SUBI Servicing Agreement and the Indenture and (ii) direct the applicable party to terminate any power of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment of debt, marshalling of assets and liabilities or similar proceedings of or relating attorney granted to the Servicer or any Subservicer and direct such party to execute a new power of attorney to the Indenture Trustee or relating to all or substantially all its property, or a decree or order designee. The existence of a court Servicer Default may be waived with the consent of the Required Noteholders. Notwithstanding the foregoing, a delay in or agency failure of performance referred to under paragraph (a) above for an additional period of five (5) Business Days after the applicable grace period or supervisory authority having jurisdiction in referred to under paragraph (b) or (c) above for a period of forty-five (45) days after the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairsapplicable grace period, shall have been entered against not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such decree delay or order failure was caused by a Force Majeure Event. If, following the expiration of such incremental forty-five (45) day grace period in the case of a delay or failure of performance described in paragraph (b) or (c) above, the applicable delay or failure of performance remains outstanding but the Servicer continues to work diligently to remedy such delay or failure of performance, then the grace period shall have remained in force undischarged or unstayed be extended for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
further thirty (e30) any other Servicer Default described in any Indenture Supplement.
(a) to act as a Successor Servicer and receives an Officer's Certificate of days upon notice from the Servicer to the effect that Indenture Trustee. The preceding sentences will not relieve the Servicer cannot from using all commercially reasonable efforts to perform its obligations in good faith cure a timely manner in accordance with the terms of this Agreement and the Servicer Default which gave rise to shall provide the Termination NoticeIndenture Trustee, the Indenture Trustee shall assume Issuer and the role Depositor with an Officer’s Certificate giving prompt notice of Successor Servicersuch failure or delay, together with a description of its efforts so to perform its obligations. After receipt by the Servicer of a Termination Notice, and effective on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.02Servicing Transfer Date, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a "Service “Servicing Transfer"”) appointed by the Indenture Trustee (at the written direction of the Required Noteholders if the Successor Servicer is not the Back-up Servicer or the Indenture Trustee) pursuant to Section 8.02; and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperatecooperate promptly) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Servicing Transfer. The Servicer agrees to reasonably cooperate and to cause each Subservicer to reasonably cooperate (and each Subservicer agrees to cooperate) with the Indenture Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder and (ii) transferring all duties and obligations of the Servicer hereunder to such Successor Servicer, including the transfer to such Successor Servicer of all authority of the Servicer to service and administer the Collateral Loans provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the or other applicable Asset PoolNote Account, or which shall thereafter be received with respect to the CollateralLoans, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the TrustServicer. The Servicer shall within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all its electronic records relating to the Loans, together with all other records, correspondence and documents necessary for the continued servicing and administration of the Collateral Loans in the manner and at such times as the Successor Servicer shall reasonably request. Notwithstanding the foregoing, the Servicer shall be allowed to retain a copy of all records, correspondence and documents provided to the Successor Servicer in compliance with the Servicer’s recordkeeping policies or Requirements of Law. The predecessor Servicer shall be responsible for all expenses incurred in transferring the servicing duties to the Successor Servicer. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer deems to be confidentialconfidential or give the Successor Servicer access to software or other intellectual property, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trustee, the applicable Collateral Agent and each Transferor with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Regional Management Corp.)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice or instructions to the Indenture Trustee pursuant to Article IV or to instruct the Trustee to make any required withdrawal or payment on or before the date occurring five days after the date such payment, transfer transfer, deposit, withdrawal or deposit on the date the Servicer drawing or such instruction or notice is required to do so be made or given, as the case may be, under the terms of this Agreement, the Indenture Agreement or any Indenture applicable Supplement; PROVIDED, or HOWEVER, that any such failure caused by a nonwillful act of the Servicer shall not constitute a Servicer Default if the Servicer promptly remedies such failure within the applicable grace period, which will not exceed 35 Business Daysfive business days after receiving notice thereof;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement, which has an Adverse Effect a material adverse effect on the Noteholders Investor Certificateholders of any Series, Class or Tranche Series (without regard to the amount of any Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer, the Owner Trustee, the Indenture Trustee Servicer and the applicable Collateral Agent Trustee by the Holders of Notes Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the aggregate unpaid principal amount Invested Amount of all Notes sustaining any Series adversely affected thereby and continues to materially adversely affect such Adverse Effect (or, with respect to any Investor Certificateholders for such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related)period; or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06Section 8.7;
(c) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an Adverse Effect a material adverse effect on the rights of the Noteholders Investor Certificateholders of any Series, Class or Tranche Series (without regard to the amount of any Enhancement) and which Adverse Effect continues to be incorrect in any 100 material respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee Servicer and the applicable Collateral Agent Trustee by the Holders of Notes Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the aggregate unpaid principal amount Invested Amount of all Notes (any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) any other then, so long as such Servicer Default described shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Aggregate Invested Amount, by notice then given in any Indenture Supplement.
writing to the Servicer (aand to the Trustee if given by the Investor Certificateholders) to act as (a Successor Servicer "Termination Notice"), may terminate all of the rights and receives an Officer's Certificate obligations of the Servicer to the effect that the as Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicerunder this Agreement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Indenture Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a "Service Transfer") Servicer; and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and 101 deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder including, including without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Excess Funding Account for the applicable Asset Pooland any Series Account, or which shall thereafter be received with respect to the CollateralReceivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Net Interchange (if any) applicable to the Trust. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under the Enhancement with respect to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (aunder subsection 10.1(a) above for a period of 10 ten (10) Business Days after the applicable grace period or under paragraph (bsubsection 10.1(b) or (c) above for a period of 60 sixty (60) Business Days after the 102 applicable grace period, period shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially its best reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trusteeany Enhancement Provider, the applicable Collateral Agent Transferor and each Transferor the Holders of Investor Certificates with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Bank Corporate Card Master Trust)
Servicer Defaults. (a) If any one of the following events (a "Servicer Default") shall occur and be continuing:
(ai) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice or instructions to the Indenture Trustee to make any required withdrawal or such payment, transfer or deposit on or before the date occurring five Business Days after the Servicer date such payment, transfer or deposit or such instruction or notice is required to do so be made or given, as the case may be, under the terms of this Agreement, the Master Indenture or or, with respect to a particular Series of Notes, any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Days;
(bii) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement which has an Adverse Effect on the Noteholders of any Series, Class or Tranche and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent Indenture Trustee, or to the Servicer, the Owner Trustee, Trustee and the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less than 5010% of the aggregate unpaid principal amount Outstanding Amount of the Notes of all Notes sustaining such Adverse Effect Series (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 5010% of the aggregate unpaid principal amount of all Series, Classes or Tranches Series to which such failure relatedrelates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 5.02 and 7.065.07;
(ciii) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an Adverse Effect on the rights of the Noteholders of any Series, Class or Tranche Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which Adverse Effect continues for a period of 60 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral AgentIndenture Trustee, or to the Servicer, the Owner Trustee, Trustee and the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 5010% of the aggregate unpaid principal amount Outstanding Amount of the Notes of all Notes Series (or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 5010% of the aggregate unpaid principal amount of all Series, Classes or Tranches Series to which such representation, warranty or certification relates);
(div) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(ev) with respect to a particular Series of Notes, any other Servicer Default described in any the related Indenture Supplement. Notwithstanding the foregoing, a delay in or failure of performance referred to in Section 7.01(a)(i) for a period of ten Business Days after the applicable grace period or under Section 7.01(a)(ii) or (a)(iii) for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustees, each Transferor and any Series Enhancer with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
(ab) Upon the occurrence of a Servicer Default, so long as the Servicer Default shall not have been remedied, either the Indenture Trustee or the Holders of Notes evidencing more than 50% of the Outstanding Amount of the Notes of all Series (or, with respect to any such Servicer Default that does not relate to all Series, 50% of the Outstanding Amount of all Series to which such Servicer Default relates), by notice then given to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Noteholders) (a "Termination Notice"), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement with respect to all Notes or the Notes of one or more affected Series; provided, however, if within 60 days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with Section 7.02(c) to act as a Successor Servicer and receives an Officer's Certificate of the Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume grant a right of first refusal to the role Transferor which would permit the Transferor at its option to acquire the Notes on the Distribution Date in the next calendar month. The price for the Notes shall be equal to the sum of Successor Servicerthe amounts specified therefor with respect to each outstanding Series in the related Indenture Supplement. The Transferor shall notify the Indenture Trustee prior to the Record Date for the Distribution Date of the acquisition if it is exercising such right of first refusal. If the Transferor exercises such right of first refusal, the Transferor shall deposit the price into the Collection Account not later than 1:00 p.m., New York City time, on such Distribution Date in immediately available funds. The price shall be allocated and distributed to Noteholders in accordance with the terms of the Master Indenture and each Indenture Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.027.02, all authority and power of the Servicer under this Agreement with respect to all Notes or the Notes of one or more affected Series shall pass to and be vested in the Successor Servicer (each, a "Service Transfer") ); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset PoolAccount, or which shall thereafter be received with respect to the CollateralReceivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the TrustServicer. The Servicer shall within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trustee, the applicable Collateral Agent and each Transferor with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 1 contract
Servicer Defaults. If The occurrence of any one or more of ----------------- the following events (shall constitute a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer shall fail to make any payment, transfer or deposit or instruct the Securities Intermediary to give notice or instructions remit to the Indenture Trustee Agent on any day any amount required to make any required withdrawal be remitted to the Agent on such day in respect of Yield, Net Swap Amounts, Facility Fees or payment, transfer or deposit on Capital and such failure shall continue for three (3) Business Days after the date the Servicer is required to do so under the terms of this Agreement, the Indenture or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Dayswhen such amounts became due;
(b) the Servicer shall fail to deposit, or fail to pay, or fail to cause to be deposited or paid when due any other amount due hereunder, and any such failure shall continue for five (5) Business Days after the earlier of the date on which it has actual knowledge thereof or the date on which it has received written notice thereof by the Agent to the Servicer;
(c) failure on the part of the Seller or the Servicer to duly to observe or perform in any material respect any other covenants or agreements of the Seller or the Servicer set forth in the Sale Agreement, this Agreement Agreement, or any of the other Transaction Documents, which has an Adverse Effect on the Noteholders of any Series, Class or Tranche and which failure continues unremedied for a period of 60 thirty (30) days after the earlier of knowledge thereof or the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee Seller or the applicable Collateral Agent or to the Servicer, as applicable, by the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06Agent;
(cd) any representation, warranty warranty, certification or certification statement made by the Servicer in under this Agreement or in any certificate delivered agreement, certificate, report, appendix, schedule or document furnished by the Seller or Servicer to the Agent pursuant to or in connection with this Agreement shall prove to have been incorrect when made, which has an Adverse Effect on the rights false or misleading in any material respect as of the Noteholders time made or deemed made (including by omission of any Series, Class or Tranche and which Adverse Effect continues for a period of 60 days after the date on which written notice thereof, requiring the same material information necessary to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes (or, with respect to any make such representation, warranty warranty, certification or certification that does statement not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relatesmisleading);
(de) the Servicer shall consent to the appointment entry of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or conservator, receiver or liquidator for the Seller or the Servicer, in any bankruptcy, insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings, or for the winding-winding up or liquidation of its their respective affairs, shall have been entered against and the Servicer and continuance of any such decree or order shall have remained unstayed and in force undischarged or unstayed effect for a period of 60 consecutive days;
(f) the consent by the Seller or the Servicer to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities, or similar proceedings of or relating to the Seller or the Servicer or of or relating to substantially all of their respective property; or the Seller or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(eg) a default by the Servicer in the performance of any other Servicer Default described term, provision or condition contained in any Indenture Supplement.
(a) to act as a Successor Servicer and receives an Officer's Certificate agreement under which any indebtedness of the Servicer in excess of $10 million was created or is governed, the effect of which is to cause any such indebtedness to become due prior to its stated maturity; or any such indebtedness shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment or as a result of the voluntary sale or transfer of the property or assets) prior to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicer. After receipt by the Servicer of a Termination Notice, and on the stated maturity date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a "Service Transfer") and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset Pool, or which shall thereafter be received with respect to the Collateral, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trustee, the applicable Collateral Agent and each Transferor with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligationsthereof.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Navistar Financial Retail Receivables Corporation)
Servicer Defaults. If any one of the following events (a "“Servicer Default"”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit on or to give notice or instructions to before the Indenture Trustee to make any required date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or payment, transfer drawing or deposit on the date the Servicer such instruction or notice is required to do so under be made or given by the terms of this AgreementServicer, as the Indenture or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Dayscase may be;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement Agreement, which has an Adverse Effect a material adverse effect on the Noteholders of any Series, Class or Tranche Series and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, Issuer (or the Indenture Trustee or the applicable Collateral Agent or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less than 50% on behalf of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure relatedIssuer); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06;
(c) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an Adverse Effect a material adverse effect on the rights of the Issuer or Noteholders of any Series, Class or Tranche and which Adverse Effect continues to be incorrect in any material respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes (Issuer; or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(d) an Insolvency Event with respect to the Servicer shall consent have occurred: then, so long as such Servicer Default shall not have been remedied, the Issuer may, if directed by the Indenture Trustee (acting at the direction of Noteholders of not less than 66 2/3% of the Outstanding Dollar Principal Amount of the Notes for all Series), by delivery of a written notice of termination to the appointment Issuer (a “Termination Notice”), terminate all of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment of debt, marshalling of assets the rights and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) any other Servicer Default described in any Indenture Supplement.
(a) to act as a Successor Servicer and receives an Officer's Certificate obligations of the Servicer to the effect that the as Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicerunder this Agreement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Indenture Trustee Issuer pursuant to Section 10.025.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a "Service Transfer") Servicer; and, without limitation, the Indenture Trustee Issuer is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate with the Indenture Trustee Issuer and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder including, including without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral Receivables provided for under this Agreement, including, without limitation, all authority over all Collections Table of Contents which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset PoolAccount, or which shall thereafter be received with respect to the CollateralReceivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds Proceeds, Recoveries and Interchange (if any) applicable to the TrustIssuer. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 5.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (asubsection 5.01(a) above for a period of 10 additional Business Days after the applicable grace period or under paragraph (bsubsection 5.01(b) or (c) above for a period of 60 additional Business Days after the applicable grace periodDays, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trustee, the applicable Collateral Agent and each Transferor Issuer with an Officer's ’s Certificate of the Servicer giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations. For the avoidance of doubt, the determination of a Servicer Default shall be based solely on the provisions in this Section 5.01 and the occurrence of a material instance of noncompliance with the applicable servicing criteria specified in Item 1122(d) of Regulations AB shall not be determinative that a Servicer Default has occurred.
Appears in 1 contract
Servicer Defaults. If any one of the following events (a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit deposit, or, if applicable, to give instructions or notice to the Trustee to make such payment, transfer or deposit, or to give notice or instructions to the Indenture Trustee as to make any required withdrawal or payment, transfer or deposit on the date the Servicer is required action to do so be taken under the terms of this POOLING AND SERVICING AGREEMENT any Enhancement Agreement, or to provide a Monthly Servicer's Report to the Indenture or any Indenture SupplementTrustee, or in each case, within two Business Days after the applicable grace period, which will not exceed 35 Business Days;same shall become due; or
(b) failure on the part of the Servicer duly shall fail to observe or perform in any material respect any other covenants covenant or agreements of the Servicer set forth in this Agreement agreement applicable to it contained herein, which has an Adverse Effect on the Noteholders of any Series, Class or Tranche and which failure continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent an Enhancement Provider, or to the Servicer, the Owner Trustee, the Indenture Trustee Servicer and the applicable Collateral Agent Trustee by Holders holders of Notes Investor Certificates evidencing not less than 5025% of the aggregate unpaid principal amount Series Invested Amount of all Notes sustaining such Adverse Effect (any Series or an Enhancement Provider; or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06;
(c) any representation, warranty or certification made or deemed made by the Servicer under or in this Agreement connection with any Transaction Document, or in any certificate or information delivered pursuant to this Agreement or in connection with any Transaction Document shall prove to have been incorrect when on or as of the date made or deemed made, which has an Adverse Effect on the rights of the Noteholders of any Series, Class or Tranche and which Adverse Effect continues to be incorrect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agentan Enhancement Provider, or to the Servicer, the Owner Trustee, the Indenture Trustee Servicer and the applicable Collateral Agent Trustee by the Holders holders of Notes Investor Certificates evidencing not less than 5025% of the aggregate unpaid principal amount Series Invested Amount of all Notes (any Series or an Enhancement Provider; or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(d) the Servicer an Insolvency Event shall consent occur with respect to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligationsServicer; or
(e) the Servicer assigns its duties under this Agreement, except as specifically permitted by Section 8.02; or
(f) The Servicer shall at any other time fail to have Consolidated Tangible Net Worth of at least $250,000; then, so long as such Servicer Default described shall not have been remedied, either the Trustee, or the holders of Investor Certificates evidencing Undivided Trust Interests aggregating more than 66 2/3% of the Aggregate Invested Amount, by notice then given in any Indenture Supplement.
writing to the Servicer (aand to the Trustee if given by the Investor Certificateholders) to act as (a Successor Servicer "SERVICER TERMINATION NOTICE"), may terminate all of the rights and receives an Officer's Certificate obligations of the Servicer to the effect that the as Servicer cannot in good faith cure the under this Agreement. The Trustee shall promptly notify any Enhancement Provider of any such Servicer Default of which gave rise to a Responsible Officer of the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicerhas actual Knowledge. After receipt by the Servicer of a such Servicer Termination Notice, and on the date that a Successor Servicer is appointed accepts its appointment as such by the Indenture Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a "Service Transfer") Servicer; and, without limitation, the Indenture Trustee is hereby authorized and POOLING AND SERVICING AGREEMENT empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Concentration Account, any Collection Account, the Excess Funding Account for the applicable Asset Poolor any Series Account, or which shall thereafter be received with respect to the CollateralReceivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables Receivables, the Accounts and the other Trust Assets to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral Receivables, the Accounts and the other Trust Assets in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under any Enhancement with respect to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (bSection 10.01(a) or (c) above b), for a cumulative period of 60 five Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, any Enhancement Provider and the Owner Trustee, the applicable Collateral Agent and each Transferor with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Elder Beerman Stores Corp)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice or instructions to the Indenture Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or payment, transfer drawing or deposit on the date the Servicer such instruction or notice is required to do so be made or given, as the case may be, under the terms of this Agreement; provided, however, that any such failure caused by a non- willful act of the Indenture Servicer shall not constitute a Servicer Default if the Servicer promptly remedies such failure within five Business Days after receiving notice of such failure or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Daysotherwise becoming aware of such failure;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement Agreement, which has an Adverse Effect a material adverse effect on the Noteholders Investor Certificateholders of any Series, Class or Tranche Series and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer, the Owner Trustee, the Indenture Trustee Servicer and the applicable Collateral Agent Trustee by the Holders of Notes Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the aggregate unpaid principal amount Invested Amount of all Notes sustaining any Series materially adversely affected thereby and continues to materially adversely affect such Adverse Effect (or, with respect to any Investor Certificateholders for such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06period;
(c) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an Adverse Effect a material adverse effect on the rights of the Noteholders Investor Certificateholders of any Series, Class or Tranche Series and which Adverse Effect continues to be incorrect in any material respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee Servicer and the applicable Collateral Agent Trustee by the Holders of Notes Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the aggregate unpaid principal amount Invested Amount of all Notes (any Series materially adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or any other insolvency, readjust- ment readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, ; or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, bankruptcy proceeding or any other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) any other then, so long as such Servicer Default described shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Aggregate Invested Amount, by notice then given in any Indenture Supplement.
writing to the Servicer (aand to the Trustee if given by the Investor Certificateholders) to act as (a Successor Servicer "Termination Notice"), may terminate all of the rights and receives an Officer's Certificate obligations of the Servicer to the effect that the as Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicerunder this Agreement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Indenture Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a "Service Transfer") Servicer; and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder including, including without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Excess Funding Account, the Interest Funding Account for or the applicable Asset PoolPrincipal Account, and any Series Account, or which shall thereafter be received with respect to the Collateral, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the TrustReceivables. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under the Enhancement with respect to any Series to the Successor Servicer. In connection with any service transfer, all reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the records, correspondence and other documents with respect to the Receivables and the other Trust Property to the Successor Servicer and amending this Agreement to reflect such succession as Successor Servicer pursuant to this Section 10.1 and Section 10.2 shall be paid by the Servicer (unless the Trustee is acting as the Servicer on a temporary basis, in which case the original Servicer shall be responsible therefor) upon presentation of reasonable documentation of such costs and expenses. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (asubsection 10.1(a) above for a period of 10 five Business Days after the applicable grace period or under paragraph (bsubsection 10.1(b) or (c) above for a period of 60 Business Days after the applicable grace perioddays, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power outages, bank closings, communications outages, computer failure or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trusteeany Enhancement Provider, the applicable Collateral Agent Transferor and each Transferor the Holders of Investor Certificates with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Green Tree Financial Corp)
Servicer Defaults. If any one The occurrence of anyone or more of the following events (shall constitute a "Servicer Default") shall occur and be continuing:
(a) any failure by The Servicer shall fail to instruct the Servicer Bank and Owner to make any payment, transfer or deposit on or to give notice or instructions to the Indenture Trustee to make any required withdrawal or payment, transfer or deposit on before the date occurring three (3) Business Days after the Servicer date such instruction is required to do so be made by the Servicer under this Agreement or shall fail duly to observe any covenant of the terms of this Agreement, the Indenture Servicer set forth in Section 3.2 or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Days;Section 4.2.
(b) failure on the part of the The Servicer shall fail duly to observe or perform in any material respect any other covenants covenant or agreements agreement of the Servicer set forth in this Agreement which has an Adverse Effect on the Noteholders of or in any Series, Class or Tranche other Transaction Document and which continues such failure shall continue unremedied for a period of 60 fifteen (15) days after the earlier of the date on which written the Servicer receives notice of such failure and the date on which the Servicer becomes aware of such failure, requiring the same or should have become aware pursuant to be remedied, shall have been given to the usual and customary policies and procedures normally applied by Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, in accordance with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure relatedSection 4.2(a); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06;.
(c) any Any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement other Transaction Document shall prove to have been incorrect in any material respect when made, which has an Adverse Effect on the rights of the Noteholders of any Series, Class made or Tranche deemed made and which Adverse Effect continues for a period of 60 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or certification that does not relate shall continue to all Series, Classes or Tranches, not less than 50% be incorrect in any material respect for fifteen (15) days after the earlier of the aggregate unpaid principal amount date on which the Servicer receives notice of all Seriessuch incorrectness and the date on which the Servicer becomes aware of such incorrectness, Classes or Tranches should have become aware pursuant to which such representation, warranty or certification relatesusual and customary policies and procedures normally applied by· Servicer in accordance with Section 4.2(a);.
(d) the The Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 ninety (90) days; , or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or.
(e) any other Servicer Default described in any Indenture SupplementThe Annual Attrition Rate equals or exceeds 15.0% or the Quarterly Attrition Rate equals or exceeds 17.0%, except as disclosed on Schedule 5.1(e) hereto.
(af) There occurs and is continuing a material Event of Default under that certain Credit Agreement by and between Owner and FCC, LLC (“FCC”) as agent and the lenders thereto (as the same may be amended, modified or restated, the “Senior Credit Agreement”) under Section 8.1.1, 8.1.12, 8.1.13 or 8.1.3 (but with respect to act as Section 8.1.3, only with respect to an Event of Default thereunder caused by a Successor Servicer and receives an Officer's Certificate breach of Section 7.2.16 or 7.2.20) of the Servicer to Senior Credit Agreement or such Event of Default under the effect that Senior Credit Agreement which materially adversely effects the Servicer cannot in good faith cure Alarm Accounts as collateral or the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role ability of Successor Servicer. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a "Service Transfer") and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer Owner to service the Collateral provided for under this Senior Funded Debt (as currently defined in the Senior Credit Agreement) in both cases, includingas reasonably determined by FCC as agent, without limitation, all authority over all Collections which shall on beyond the date notice thereof is delivered to CastleRock by FCC or Owner, plus application of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset Pool, or which shall thereafter be received with respect to the Collateral, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the Trustany cure period. The Servicer shall within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and Owner shall promptly transfer to provide CastleRock with a copy of any notice of default under the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with Senior Credit Agreement which it receives; provided however this Section 5.1(f) shall require the Servicer apply only to disclose to the Successor Servicer information such Events of any kind Default which the Servicer deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or arise under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this the Senior Credit Agreement as executed by the parties as of May 25, 2007, a true and the Servicer shall provide the Indenture Trustee, the Owner Trustee, the applicable Collateral Agent and each Transferor with an Officer's Certificate giving prompt notice correct copy of such failure or delay which has been provided to CastleRock by it, together with a description of its efforts so to perform its obligationsOwner.
Appears in 1 contract
Sources: Servicing Agreement (CastleRock Security Holdings, Inc.)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuingcontinuing with respect to the Servicer:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice or instructions to the Indenture Trustee to make any required withdrawal or such payment, transfer or deposit or to give notice to the Indenture Trustee as to any action to be taken under any Enhancement Agreement on or before the date occurring five days after the Servicer date such payment, transfer or deposit or such instruction or notice is required to do so be made or given, as the case may be, under the terms of this Agreement, the Indenture or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Days;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement which has an Adverse Effect a material adverse effect on the Noteholders of any Series, Class or Tranche and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Indenture Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect ;
(or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or c) the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 3.01 and 7.065.07;
(cd) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an Adverse Effect a material adverse effect on the rights of the Noteholders of any Series, Class or Tranche Series and which Adverse Effect material adverse effect continues for a period of 60 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Indenture Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(de) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator or other similar official in any bankruptcy proceeding or other bankruptcy, insolvency, readjust- ment readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator or other similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-winding up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have 41 remained in force undischarged or unstayed for a period of 60 daysunstayed; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) then, in the event of any other Servicer Default, so long as the Servicer Default described shall not have been remedied, the Indenture Trustee, by notice then given in any Indenture Supplement.
writing to the Servicer (aa "Termination Notice"), may terminate all but not less than all of the rights and obligations (other than its obligations that have accrued up to the time of such termination) to act as a Successor Servicer and receives an Officer's Certificate of the Servicer as Servicer under this Agreement and in and to the effect that Receivables and the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicerproceeds thereof. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Indenture Trustee pursuant to Section 10.026.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a "Service Transfer") and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset PoolAccount, or which shall thereafter be received with respect to the CollateralReceivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the TrustServicer. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 5.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestsinterest;
(f) failure on the part of the Servicer to engage a back-up Servicer with 180 days of the Series 200__-__ Closing Date. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (aunder Section 6.01(a) above for a period of 10 five Business Days after the applicable grace period or Days, under paragraph (bSection 6.01(b) or (c) above for a period of 60 Business Days after the applicable grace perioddays or under Section 6.01(d) for a period of 60 days, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared declares or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable its best efforts to perform its respective obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trusteeany Agents, any Enhancement Providers, the applicable Collateral Agent Transferor and each Transferor Indenture with an Officer's Officers' Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations. The Servicer shall immediately notify the Indenture Trustee in writing of any Servicer Default.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (CNH Wholesale Receivables Inc)
Servicer Defaults. If any one of the following events (a "“Servicer Default"”) shall occur and be continuing:
(a) any failure by the Servicer to make any required payment, transfer or deposit or to give instructions or notice or instructions to the Indenture Trustee to make any required withdrawal or cause to be made such payment, transfer or deposit on or before the date the Servicer such payment, transfer or deposit or such instruction or notice is required to do so be made or given, as the case may be, under the terms of this Agreement, the Indenture or any Indenture Indenture, the 2022-2B SUBI Supplement, or within the applicable grace period2022-2B SUBI Servicing Agreement, which will not exceed 35 Business Days;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement which has an Adverse Effect on the Noteholders of any Seriesaggregate amount exceeding $50,000, Class or Tranche and which failure continues unremedied for a period of 60 days five (5) Business Days after the earlier of (i) the date on which written notice of such failure, requiring the same to be remedied, shall have been given by registered or certified mail to the Servicer by the Owner Issuer or the Indenture Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer, the Owner Trustee, Issuer and the Indenture Trustee by the Required Noteholders and (ii) the applicable Collateral Agent by Holders of Notes evidencing not less than 50% actual knowledge of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect Servicer thereof;
(or, with respect to b) any such failure that does not relate to all Series, Classes or Tranches, not less than 50% on the part of the aggregate unpaid principal amount Servicer duly to observe or perform any other covenants or agreements of all Series, Classes or Tranches to which such failure related); or the Servicer shall assign or delegate its duties under set forth in this Agreement, except the Indenture, the 2022-2B SUBI Supplement or the 2022-2B SUBI Servicing Agreement or in any certificate delivered by the Servicer pursuant to this Agreement, the 2022-2B SUBI Supplement, the 2022-2B SUBI Servicing Agreement or the Indenture, which failure has a material adverse effect on the interests of the Noteholders (as permitted determined by Sections 7.02the Threshold Noteholders) and which continues unremedied for a period of forty-five (45) days after the earlier of (i) the date on which notice of such failure, 7.05 requiring the same to be remedied, shall have been given by registered or certified mail to the Servicer by the Issuer or the Indenture Trustee, or to the Servicer, the Issuer and 7.06the Indenture Trustee by the Threshold Noteholders and (ii) the actual knowledge of the Servicer thereof;
(c) any representation, warranty or certification made by the Servicer in this Agreement, the Indenture, the 2022-2B SUBI Supplement or the 2022-2B SUBI Servicing Agreement or in any certificate delivered by the Servicer pursuant to this Agreement, the Indenture, the 2022-2B SUBI Supplement or the 2022-2B SUBI Servicing Agreement shall prove to have been incorrect when made, which made or deemed made and such failure has an Adverse Effect a material adverse effect on the rights of Noteholders (as determined by the Noteholders of any Series, Class or Tranche Threshold Noteholders) and which Adverse Effect continues unremedied for a period of 60 forty-five (45) days after the earlier of (i) the date on which written a notice thereof, specifying such incorrect representation or warranty and requiring the same to be remedied, shall have been given by registered or certified mail to the Servicer by the Owner Trustee, Issuer or the Indenture Trustee or the applicable Collateral AgentTrustee, or to the Servicer, the Owner TrusteeIssuer, and the Indenture Trustee by the Threshold Noteholders and (ii) the actual knowledge of the Servicer thereof; or
(d) an Insolvency Event shall occur with respect to the Servicer; SALE AND SERVICING AGREEMENT (RMIT 2022-2B) - Page 28 then, in the event of any Servicer Default, so long as a Servicer Default is continuing, the Indenture Trustee may (and upon the written direction of the Required Noteholders shall), by notice then given to the Servicer, the Issuer, the North Carolina Trust and the applicable Collateral Agent by the Holders of Notes evidencing not less than 50% Back-up Servicer (a “Termination Notice”) (i) terminate all of the aggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% rights and obligations of the aggregate unpaid principal amount Servicer as Servicer under this Agreement, the 2022-2B SUBI Supplement, the 2022-2B SUBI Servicing Agreement and the Indenture and (ii) direct the applicable party to terminate any power of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment of debt, marshalling of assets and liabilities or similar proceedings of or relating attorney granted to the Servicer or any Subservicer and direct such party to execute a new power of attorney to the Indenture Trustee or relating to all or substantially all its property, or a decree or order designee. The existence of a court Servicer Default may be waived with the consent of the Required Noteholders. Notwithstanding the foregoing, a delay in or agency failure of performance referred to under paragraph (a) above for an additional period of five (5) Business Days after the applicable grace period or supervisory authority having jurisdiction in referred to under paragraph (b) or (c) above for a period of forty-five (45) days after the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairsapplicable grace period, shall have been entered against not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such decree delay or order failure was caused by a Force Majeure Event. If, following the expiration of such incremental forty-five (45) day grace period in the case of a delay or failure of performance described in paragraph (b) or (c) above, the applicable delay or failure of performance remains outstanding but the Servicer continues to work diligently to remedy such delay or failure of performance, then the grace period shall have remained in force undischarged or unstayed be extended for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
further thirty (e30) any other Servicer Default described in any Indenture Supplement.
(a) to act as a Successor Servicer and receives an Officer's Certificate of days upon notice from the Servicer to the effect that Indenture Trustee. The preceding sentences will not relieve the Servicer cannot from using all commercially reasonable efforts to perform its obligations in good faith cure a timely manner in accordance with the terms of this Agreement and the Servicer Default which gave rise to shall provide the Termination NoticeIndenture Trustee, the Indenture Trustee shall assume Issuer and the role Depositor with an Officer’s Certificate giving prompt notice of Successor Servicersuch failure or delay, together with a description of its efforts so to perform its obligations. After receipt by the Servicer of a Termination Notice, and effective on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.02Servicing Transfer Date, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a "Service “Servicing Transfer"”) appointed by the Indenture Trustee (at the written direction of the Required Noteholders if the Successor Servicer is not the Back-up Servicer or the Indenture Trustee) pursuant to Section 8.02; and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperatecooperate promptly) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Servicing Transfer. The Servicer agrees to reasonably cooperate and to cause each Subservicer to reasonably cooperate (and each Subservicer agrees to cooperate) with the Indenture Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder and (ii) transferring all duties and obligations of the Servicer hereunder to such Successor Servicer, including the transfer to such Successor Servicer of all authority of the Servicer to service and administer the Collateral Loans provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the or other applicable Asset PoolNote Account, or which shall thereafter be received with respect to the CollateralLoans, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the TrustServicer. The Servicer shall within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all its electronic records relating to the Loans, together with all other records, correspondence and documents necessary for the continued servicing and SALE AND SERVICING AGREEMENT (RMIT 2022-2B) - Page 29 administration of the Collateral Loans in the manner and at such times as the Successor Servicer shall reasonably request. Notwithstanding the foregoing, the Servicer shall be allowed to retain a copy of all records, correspondence and documents provided to the Successor Servicer in compliance with the Servicer’s recordkeeping policies or Requirements of Law. The predecessor Servicer shall be responsible for all expenses incurred in transferring the servicing duties to the Successor Servicer. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer deems to be confidentialconfidential or give the Successor Servicer access to software or other intellectual property, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trustee, the applicable Collateral Agent and each Transferor with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Regional Management Corp.)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuingcontinuing with respect to the Servicer:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice or instructions to the Indenture Trustee to make any required withdrawal or such payment, transfer or deposit or to give notice to the Trustee as to any action to be taken under any Enhancement Agreement on or before the date the Servicer such payment, transfer or deposit or such instruction or notice is required to do so be made or given, as the case may be, under the terms of this Agreement, which failure is not cured within five Business Days after notice of such failure from the Indenture or any Indenture Supplement, or within Trustee to the applicable grace period, which will not exceed 35 Business DaysServicer;
(b) failure on the part of the Servicer duly to observe or perform its covenant not to create any Lien on any Receivable which failure has a material adverse effect on the Certificateholders and which continues unremedied for a period of sixty (60) days after written notice to it of such failure; provided, however, that a "Servicer Default" shall not be deemed to have occurred if the Seller or the Servicer shall have repurchased the related Receivables or, if applicable, all of the Receivables during such period in accordance with the provisions of this Agreement;
(c) failure on the part of the Servicer duly to observe or perform any material respect any other covenants or agreements of the Servicer set forth in this Agreement (other than with respect to those specified in clause (a) or (b) above and with respect to clauses (viii), (ix) and (x) under Section 3.3(a) hereof, to the extent the terms of Section 3.3(c) hereof have been complied with) which failure has an Adverse Effect a material adverse effect on the Noteholders of any Series, Class or Tranche Certificateholders and which continues unremedied for a period of 60 thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06;
(cd) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an Adverse Effect a material adverse effect on the rights of the Noteholders Investor Certificateholders of any Series, Class or Tranche Series and which Adverse Effect material adverse effect continues for a period of 60 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee; provided, however, that a "Servicer Default" shall not be deemed to have occurred if the Indenture Trustee Seller or the applicable Collateral Agent, or to Servicer shall have repurchased the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes (related Receivables or, if applicable, all of such Receivables during such period in accordance with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% the provisions of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates)this Agreement;
(de) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator or other similar official in any bankruptcy proceeding or other bankruptcy, insolvency, readjust- ment readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator or other similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 sixty days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) then, in the event of any other Servicer Default, so long as the Servicer Default described shall not have been remedied, the Trustee, by notice then given in any Indenture Supplement.
writing to the Servicer (aa "Termination Notice"), may terminate all but not less than all of the rights and obligations (other than its obligations that have accrued up to the time of such termination) to act as a Successor Servicer and receives an Officer's Certificate of the Servicer as Servicer under this Agreement and in and to the effect that Receivables and the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicerproceeds thereof. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Indenture Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a "Service Transfer") and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer; provided that in no event shall the Servicer incur any liability for any such action by the Trustee. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset PoolAccount, or which shall thereafter be received with respect to the CollateralReceivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the TrustServicer. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestsinterest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (aunder Section 10.1(a) above for a period of 10 Business Days after the applicable grace period or under paragraph Section 10.1(b), (bc) or (cd) above for a period of 60 Business Days after the applicable grace periodDays, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement Agreement, and the Servicer shall provide the Indenture Trustee, the Owner Trusteeany Agents, any Enhancement Providers, the applicable Collateral Agent Seller and each Transferor the Certificateholders with an Officer's Officers' Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations. The Servicer shall immediately notify the Trustee in writing of any Servicer Default.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Distribution Financial Services Floorplan Master Trust)
Servicer Defaults. If any one of the following events (each, a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make deliver to the related Trustee for deposit in any payment, transfer of the Accounts or deposit the Certificate Distribution Account any required payment or to give notice or instructions to direct the Indenture Trustee to make any required withdrawal distributions therefrom, which failure continues unremedied for a period of three Business Days after discovery of such failure by an officer of the Servicer or payment, transfer or deposit on after the date on which written notice of such failure, requiring the same to be remedied, shall have been given (i) to the Servicer is required by the related Trustee or (ii) to do so under the terms Servicer and to the Trustees by the Holders of this AgreementNotes, evidencing not less than 25% of the Indenture or any Indenture Supplement, or within Outstanding Amount of the applicable grace period, which will not exceed 35 Business DaysNotes;
(b) failure on the part of by the Servicer (or so long as the Servicer is AHFC, the Seller) duly to observe or to perform in any material respect any other covenants or agreements of the Servicer (or so long as the Servicer is AHFC, the Seller) set forth in this Agreement or any other Basic Document, which has an Adverse Effect on failure shall (i) materially and adversely affect the rights of Certificateholders or Noteholders of any Series, Class or Tranche and which continues (ii) continue unremedied for a period of 60 90 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given (A) to the Servicer or the Seller (as the case may be) by the Owner Trustee, the Indenture related Trustee or the applicable Collateral Agent or (B) to the ServicerServicer or the Seller (as the case may be), and to the Owner Trustee, related Trustee by the Indenture Trustee and the applicable Collateral Agent by Holders of Notes Notes, evidencing not less than 5025% of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% Outstanding Amount of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06Notes;
(c) the occurrence of an Insolvency Event with respect to the Seller or the Servicer; or
(d) any representationfailure by the Servicer, warranty any Subservicer or certification made any Subcontractor to deliver any information, report, certification, attestation or accountants' letter when and as required (including, without limitation, any failure by the Servicer to identify any Subcontractor "participating in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when madethe servicing function" within the meaning of Item 1122 of Regulation AB), which has an Adverse Effect on the rights of the Noteholders of any Series, Class or Tranche and which Adverse Effect continues unremedied for a period of 60 ten calendar days after the date on which written notice thereofsuch information, requiring the same report, certification or accountants' letter was required to be delivered then, and in each and every case, other than in the case of a Servicer Default set forth in clause (d) above, so long as the Servicer Default shall not have been remedied, shall have been given to the Servicer by the Owner Trustee, either the Indenture Trustee or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 5025% of the aggregate unpaid principal amount Outstanding Amount of all the Notes (or, if the Notes have been paid in full and the Indenture has been discharged in accordance with respect to any such representationits terms, warranty or certification that does not relate to all Series, Classes or Tranches, by holders of Certificates evidencing not less than 5025% of the aggregate unpaid principal amount Percentage Interests) by notice then given in writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Noteholders) may terminate all the rights and obligations (other than the obligations set forth in Section 6.02 that accrued on or prior to the effective date of all Series, Classes or Tranches to which such representation, warranty or certification relates);
the termination) of the Servicer under this Agreement. In the case of a Servicer Default set forth in clause (d) above, so long as the Servicer Default shall consent not have been remedied, the Issuer (or the Administrator, acting on behalf of the Issuer) shall be entitled to terminate, in its sole discretion, the rights and obligations of the Servicer as servicer under this Agreement; provided that to the appointment extent that any provision of a bankruptcy trustee this Agreement expressly provides for the survival of certain rights or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment obligations following termination of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or as servicer, such provision shall be given effect; provided, however, that the Issuer shall not be entitled to terminate the rights and obligations of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for pursuant to this section if a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) any other Servicer Default described in any Indenture Supplement.
(a) to act as a Successor Servicer and receives an Officer's Certificate failure of the Servicer to identify a Subcontractor "participating in the effect that servicing function" within the Servicer cannot in good faith cure the Servicer Default which gave rise meaning of Item 1122 of Regulation AB was attributable solely to the Termination Notice, role or functions of such Subcontractor with respect to receivables other than the Indenture Trustee shall assume the role of Successor ServicerReceivables. After receipt by the Servicer of a Termination Notice, and on On or after the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.02specified in such written notice, all authority and power of the Servicer under this Agreement shall Agreement, whether with respect to the Notes, the Certificates or the Receivables or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer (a "Service Transfer") as may be appointed under Section 7.02; and, without limitation, the Indenture Trustee is and the Owner Trustee are hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf for the benefit of the predecessor Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and or accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfernotice of termination, whether to complete the transfer and endorsement of the Receivables and related documents, or otherwise. The predecessor Servicer agrees to shall cooperate with the Indenture Trustee and such Successor Servicer and the Trustees in effecting the termination of the responsibilities and rights of the predecessor Servicer to conduct servicing hereunderunder this Agreement, including the transfer to such the Successor Servicer for administration by it of all authority of cash amounts that shall at the Servicer to service the Collateral provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer time be held by the predecessor Servicer for deposit, or which have been deposited by the predecessor Servicer, in the Collection Accounts or the Certificate Distribution Account for the applicable Asset Pool, or which shall thereafter be received with respect to the Collateral, Receivables and all Payments Ahead that shall at that time by held by the predecessor Servicer. All reasonable costs and expenses (including servicer conversion costs and attorneys' fees) incurred in assisting connection with transferring the Receivable Files to the Successor Servicer and in enforcing all rights amending this Agreement to Insurance Proceeds and Interchange (if any) applicable reflect such succession as Servicer pursuant to the Trust. The Servicer shall within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require be paid by the predecessor Servicer to disclose to the Successor Servicer information upon presentation of any kind which the Servicer deems to be confidential, the Successor Servicer shall be required to enter into reasonable documentation of such customary licensing costs and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestsexpenses. Notwithstanding the foregoing, a delay Any costs or expenses incurred in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute connection with a Servicer Default if such delay shall constitute an expense of administration under Title 11 of the United States Bankruptcy Code or failure could not be prevented by any other applicable Federal or State bankruptcy laws. Upon receipt of notice of the exercise occurrence of reasonable diligence by the a Servicer and such delay or failure was caused by an act of God or the public enemyDefault, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trustee, the applicable Collateral Agent and Trustee shall give notice thereof to each Transferor with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligationsRating Agency.
Appears in 1 contract
Sources: Sale and Servicing Agreement (American Honda Receivables 2006-1 Owner Trust)
Servicer Defaults. If any one (a) Definition. Any of the following events (will constitute a "Servicer Default") shall occur and be continuing" pursuant to this Agreement:
(ai) any failure by the Servicer to make any payment, transfer or deposit or to give notice deliver any Monthly Statement or instructions to Annual Statement which continues beyond the Indenture Trustee to make any required withdrawal or second Business Day after the date upon which such payment, transfer transfer, deposit or deposit on the date the Servicer delivery is required to do so under the terms of be made pursuant to this Agreement, the Indenture or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Days;
(bii) any failure on the part of by the Servicer duly to observe or perform in any material respect any other covenants covenant or agreements agreement of the Servicer set forth in pursuant to this Agreement which has an Adverse Effect on Agreement, if such failure materially and adversely affects the Noteholders rights of any Series, Class or Tranche the Lender and which continues unremedied for a period of 60 thirty days after the earlier of (a) the date on which written notice of demand that such failure, requiring the same to failure be remedied, shall have been remedied is given to the Servicer by the Owner Trustee, Lender or (b) the Indenture Trustee or date on which a Responsible Officer of the applicable Collateral Agent or to Servicer becomes aware of such failure;
(iii) any delegation of the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, with respect 's duties pursuant to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06pursuant to Section 6.7;
(civ) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove proves to have been incorrect in any material respect when made, which made and such incorrect statement has an Adverse Effect a material and adverse effect on the rights of the Noteholders of Lender and continues to be incorrect in any Series, Class or Tranche and which Adverse Effect continues material respect for a period of 60 thirty days after the earlier of (a) the date on which written notice thereof, requiring the same to demand that such incorrect statement be remedied, shall have been remedied is given to the Servicer by the Owner Trustee, Lender or (b) the Indenture Trustee or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 50% date on which a Responsible Officer of the aggregate unpaid principal amount Servicer becomes aware of all Notes (such incorrect statement; or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(dA) the Servicer shall consent consents to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment readjustment of debt, marshalling of assets and liabilities or similar proceedings proceeding of or relating to the Servicer or of or relating to all or substantially all of its propertyProperty, or (B) a decree or order of a court or agency or supervisory authority having proper jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedingsproceeding, or for the winding-up or liquidation of its the Servicer's affairs, shall have been is entered against the Servicer and such decree or order shall have remained remains in force undischarged or unstayed for a period of 60 90 days; , or (C) the Servicer shall admit admits in writing its inability to pay pay, or fails to pay, its debts generally as they become due, file files a petition or commences any case or proceeding to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make makes any assignment for the benefit of its creditors or voluntarily suspend suspends payment of its obligations; or
(e) any other Servicer Default described in any Indenture Supplement.
(a) to act as a Successor Servicer and receives an Officer's Certificate of the Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicer. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a "Service Transfer") and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset Pool, or which shall thereafter be received with respect to the Collateral, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trustee, the applicable Collateral Agent and each Transferor with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 1 contract
Sources: Servicing Agreement (Trans Leasing International Inc)
Servicer Defaults. If any one of the following events (subject to the last paragraph of this Section 7.01, a "Servicer Default") shall occur and be continuingcontinuing after the Certificate Trust Termination Date:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to Indenture Trustee pursuant to Article VIII of the Indenture (as modified by any Indenture Supplement) or instructions to the instruct Indenture Trustee to make any required drawing, withdrawal or payment under any Enhancement on or before the later of (i) the date occurring 10 Business Days after the date such payment, transfer transfer, deposit, withdrawal or deposit on the date the Servicer drawing or such instruction or notice is required to do so be made or given, as the case may be, under the terms of this Agreement, the Indenture or any Indenture Supplement, Supplement or within the applicable grace period, which will not exceed 35 (ii) three Business DaysDays after written notice of such failure shall have been given to Servicer;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement which has an Adverse Effect a material adverse effect on the Noteholders of any Series, Class or Tranche Series (which determination shall be made without regard to whether funds are then available pursuant to any Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Indenture Trustee, the or to Servicer and Indenture Trustee or by the applicable Collateral Agent or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount Outstanding Amount of all Notes sustaining any Series adversely affected thereby and continues to materially adversely affect such Adverse Effect (or, with respect to any Holders for such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related)period; or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06Section 5.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an Adverse Effect a material adverse effect on the rights of the Noteholders of any Series, Class or Tranche Series (which determination shall be made without regard to whether funds are then available pursuant to any Enhancement) and which Adverse Effect continues to be incorrect in any material respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Indenture Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Servicer and Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount Outstanding Amount of all Notes (any Series adversely affected thereby and continues to materially adversely affect such Holders for such period; or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, ; or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or;
(e) with respect to any Series, any other event specified in the Indenture Supplement for such Series, then, so long as such Servicer Default described shall not have been remedied or waived, either Indenture Trustee, or the Majority Holders of all outstanding Series, by notice then given in writing to Servicer (and to Indenture Trustee if given by the Majority Holders) and to any Enhancement Provider entitled thereto pursuant to the applicable Indenture Supplement.
Supplement (a) to act as a Successor Servicer and receives an Officer's Certificate "Termination Notice"), may terminate all of the rights and obligations (other than unsatisfied obligations for acts or omissions during its tenure as Servicer) of Servicer to as Servicer under this Agreement. Upon the effect that the occurrence of a Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination NoticeDefault, the Indenture Trustee shall assume the role promptly notify each Rating Agency of Successor Servicersuch Servicer Default. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Indenture Trustee pursuant to Section 10.027.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a "Service Transfer") ); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate with the Indenture Trustee and such the Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including the transfer to such the Successor Servicer of all authority of the Servicer to service the Collateral Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset Poolor any Series Account, or which shall thereafter be received with respect to the CollateralReceivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the TrustIssuer. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 7.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests. Servicer shall, on the date of any Service Transfer, transfer all of its rights and obligations under the Enhancement with respect to any Series to the Successor Servicer. Servicer being terminated shall bear all costs of a Service Transfer, including but not limited to those of Indenture Trustee reasonably allocable to specific employees and overhead, legal fees and expenses, accounting and financial consulting fees and expenses, and costs of amending this Agreement, if necessary. Notwithstanding the foregoing, a any delay in or failure of performance referred to in paragraph (aSection 7.01(a) above for a period of 10 ten Business Days after the applicable grace period or under paragraph Section 7.01(b) or (c) for a period of 60 days (in addition to any period provided in Section 7.01(a), (b) or (c)) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default until the expiration of such additional ten Business Days or 60 days, respectively, if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornados, earthquakes, floods nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable the obligation to use its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, each Rating Agency, any Enhancement Provider entitled thereto pursuant to the Owner Trustee, the applicable Collateral Agent relevant Indenture Supplement and each Transferor with an Officer's Certificate giving prompt immediate notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts to so to perform its obligations.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (First Bankcard Master Credit Card Trust)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:“Servicer
(a) any failure by the Servicer to make any payment, transfer or deposit or to give notice or instructions to the Indenture Trustee to make any required withdrawal or payment, transfer or deposit on the date the Servicer is required to do so under the terms of this Agreement, the Indenture or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 thirty-five (35) Business Days;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement which has an Adverse Effect on the Noteholders of any Series, Class or Tranche of Notes and which continues unremedied for a period of 60 sixty (60) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which of Notes sustaining such failure related)Adverse Effect; or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06;
(c) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an Adverse Effect on the rights of the Noteholders of any Series, Class or Tranche of notes and which Adverse Effect continues for a period of 60 sixty (60) days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or Trustee, the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches of Notes to which such representation, warranty or certification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-winding- up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 sixty (60) days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) any other Servicer Default described in any Indenture Supplement.
; then, so long as the Servicer Default shall not have been remedied, either the Indenture Trustee or the Holders of Notes evidencing more than 50% of the aggregate unpaid principal amount of all affected Notes, by notice then given in writing to the Servicer and the Owner Trustee (aand to the Indenture Trustee if given by the Noteholders) (a “Termination Notice”), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement; provided, however, if within sixty (60) days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with subsection 10.02(a) to act as a Successor Servicer and receives an Officer's ’s Certificate of the Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicer. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a "“Service Transfer"”) and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset PoolAccount, or which shall thereafter be received with respect to the Collateral, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall within 20 twenty (20) Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 ten (10) Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 sixty (60) Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trustee, the applicable Collateral Agent and each the Transferor with an Officer's ’s Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 1 contract
Sources: Transfer and Servicing Agreement
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuingcontinuing after the Certificate Trust Termination Date:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice or instructions to the Indenture Trustee to make any required withdrawal or such payment, transfer or deposit or to give notice to the Indenture Trustee as to any required drawing or payment under any Enhancement on or before the date occurring five Business Days after the Servicer date such payment, transfer, deposit or drawing or such instruction or notice is required to do so be made or given, as the case may be, under the terms of this Agreement, the Indenture or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Days;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement Agreement, which has an Adverse Effect a material adverse effect on the Noteholders of any Series, Class or Tranche Series then outstanding (without regard to the amount of any Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent Transferor, or to the Servicer, the Owner Trustee, Transferor and the Indenture Trustee and by the applicable Collateral Agent by Holders of Notes evidencing not less aggregating more than 50% of the aggregate unpaid outstanding principal amount of all Notes sustaining such Adverse Effect (orany Series adversely affected thereby, with respect and which continues to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% materially adversely affect the rights of the aggregate unpaid principal Noteholders of any Series then outstanding (without regard to the amount of all Series, Classes or Tranches to which such failure related); any Enhancement) or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02Section 5.7; provided, 7.05 and 7.06however, that any such failure that relates to any particular Receivable or group of Receivables shall not constitute a Servicer Default if the Servicer has made a deposit in the Collection Account with respect to such failure in accordance with Section 3.3;
(c) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an Adverse Effect a material adverse effect on the rights of the Noteholders of any Series, Class or Tranche Series then outstanding (without regard to the amount of any Enhancement) and which Adverse Effect continues to be incorrect in any material respect and which continues to affect materially and adversely the rights of the Noteholders of any Series (without regard to the amount of any Enhancement) for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral AgentTransferor, or to the Servicer, the Owner Trustee, Transferor and the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less Undivided Interests aggregating more than 50% of the aggregate unpaid outstanding principal amount of all Notes (any Series adversely affected thereby; or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) any other then, so long as such Servicer Default described shall not have been remedied, the Indenture Trustee, the Transferor or the Holders of Notes aggregating more than 50% of the Aggregate Invested Amount, by notice then given in any writing to the Servicer (and to the Indenture Supplement.
Trustee and the Transferor if given by the Noteholders) (a) to act as a Successor Servicer "Termination Notice"), may terminate all of the rights and receives an Officer's Certificate obligations of the Servicer as Servicer under this Agreement and in and to the effect that Receivables and the proceeds thereof and appoint a new Servicer can(a "Service Transfer"). The rights and interests of the Transferor Interest will not in good faith cure be affected by any Service Transfer. The Indenture Trustee, upon giving or receiving a Termination Notice shall immediately notify the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role Rating Agencies and any Enhancement Provider of Successor Servicersuch notice. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Indenture Trustee pursuant to Section 10.027.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a "Service Transfer") Servicer, and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to take all reasonable actions to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset PoolAccount, or which shall thereafter be received with respect to the CollateralReceivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the TrustRecoveries. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 7.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestsinterest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (aSection 7.1(a) above for a period of 10 Business Days after the applicable grace period or under paragraph (ba delay in or failure of performance referred to in Section 7.1(b) or (c) above for a period of 60 Business Days after the applicable grace period, period shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trusteeany Enhancement Provider, the applicable Collateral Agent Transferor and each Transferor the Holders of Notes with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations. The Servicer shall immediately notify a Responsible Officer of the Indenture Trustee in writing of any Servicer Default.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (Fnanb Credit Card Master Trust)
Servicer Defaults. If any one Each of the following events (shall constitute a "“Servicer Default") shall occur and be continuing”:
(a) any failure by the Servicer to make deliver to the Indenture Trustee for deposit in any payment, transfer of the Designated Accounts or deposit the Lockbox Accounts any required payment or to give notice or instructions to direct the Indenture Trustee to make any required withdrawal or paymentdistributions therefrom, transfer or deposit on which failure continues unremedied for a period of three (3) Business Days after the date the Servicer is required to do so under the terms of this Agreement, the Indenture or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Dayswhen due;
(b) failure on the part of the Transferor or the Servicer to duly to observe or perform in any material respect any other of their respective covenants or agreements of the Servicer set forth in the Purchase Agreement, this Agreement or any of the other Basic Documents which has an Adverse Effect on failure (i) materially and adversely affects the Noteholders rights of any Seriesthe Beneficiaries, Class or Tranche and which (ii) continues unremedied for a period of 60 thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer Transferor or the Servicer, as applicable, by the Owner Trustee, the Indenture Trustee or (acting at the applicable Collateral Agent direction of the Administrative Agent), or to the Transferor or the Servicer, the Owner Trusteeas applicable, and to the Indenture Trustee and by the applicable Collateral Agent by Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06Administrative Agent;
(c) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an Adverse Effect on the rights entry of the Noteholders of any Series, Class or Tranche and which Adverse Effect continues for a period of 60 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee conservator, receiver, liquidator or a conservator similar official for the Transferor or receiver or liquidator the Servicer, in any bankruptcy, insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings, or for the winding-winding up or liquidation of its their respective affairs, shall have been entered against and the Servicer and continuance of any such decree or order shall have remained unstayed and in force undischarged or unstayed effect for a period of 60 sixty (60) or more consecutive days;
(d) the consent by the Transferor or the Servicer to the appointment of a conservator or receiver, liquidator or similar official in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and liabilities, or similar proceedings of or relating to the Transferor or the Servicer or of or relating to substantially all of their respective property; or the Transferor or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(e) the failure to distribute a Servicer’s Certificate pursuant to the terms of Section 3.10 or Section 5.08 within three (3) Business Days after the related Determination Date provided, however, that in the event such failure is caused by an occurrence out of the reasonable control of the Servicer and is consented to by the Noteholders (such consent not to be unreasonably withheld), then a Servicer Default will not occur if such failure is cured within an additional two (2) Business Days, such exception to be limited to one time per twelve (12) months during the life of this Agreement;
(f) any assignment of rights or delegation of duties by the Servicer in violation of this Agreement;
(g) any material adverse change in the properties, business or condition (financial or otherwise) of the Servicer or the existence of any other condition which, in each case, constitutes, in the reasonable discretion of the Administrative Agent (acting at the direction of the Special Required Noteholders) a material impairment of the Servicer’s ability to perform its obligations under this Agreement; provided that a change in the value of any Loan or Receivable shall not result in a Servicer Default under this subsection (g);
(h) the first to occur of (i) an event of default by the Servicer or its Affiliate, as applicable, in the performance of any term, provision or condition of any indebtedness for borrowed money in excess of $5,000,000, which event of default other than a payment default is neither waived pursuant to an unconditional waiver nor cured within sixty (60) days (inclusive of any cure period or other period of grace) of the date upon which such event of default occurs or (ii) the acceleration of any such indebtedness as a result of an event of default, such that any indebtedness due thereunder is due prior to its stated maturity; or any such indebtedness shall be declared to be due and payable prior to the date of maturity thereof or shall be unpaid on its maturity date;
(i) a final judgment or judgments for the payment of money in excess of $5,000,000 in the aggregate against the Servicer and the same shall not be discharged (or provisions made for such discharge) or bonded, or a stay of execution thereof shall not be procured, within sixty (60) days from the date of entry thereof and the Servicer shall not, within said period of sixty (60) days, or within such longer period during which execution of the same shall have been stayed or bonded, appeal therefrom and cause the execution thereof to be stayed during such appeal;
(j) the rolling three (3) month average of the Delinquency Ratio - Receivables exceeds 6.50%;
(k) the rolling three (3) month average of the Delinquency Ratio - Equipment Loans exceeds 3.50%;
(l) the rolling three (3) month average of the Dilution Ratio - Receivables exceeds 10.0%;
(m) the rolling three (3) month average of the Default Ratio - Receivables exceeds 5.00%;
(n) the rolling three (3) month average of the Default Ratio - Equipment Loans exceeds 1.50%;
(o) the Days Sales Outstanding - Receivables exceeds one hundred ten (110) days;
(p) if ALS or an Affiliate thereof is the Servicer, the breach by the Servicer of one or both of the covenants set forth in Section 3.07(i); or
(eq) any other Servicer Default described the breach, in any Indenture Supplement.
(a) to act as a Successor Servicer and receives an Officer's Certificate of the Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Noticematerial respect, the Indenture Trustee shall assume the role of Successor Servicer. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a "Service Transfer") and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact any representation or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held warranty made by the Servicer for deposit, in this Agreement or which have been deposited by the Servicer, in the Collection Account for the applicable Asset Pool, or which shall thereafter be received with respect to the Collateral, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing any of the Collateral in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trustee, the applicable Collateral Agent and each Transferor with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligationsBasic Documents.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Alliance Laundry Systems LLC)
Servicer Defaults. (a) If any one of the following events (a "“Servicer Default"”) shall occur occurs and be continuingis continuing with respect to the Servicer:
(ai) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice or instructions to the Indenture Trustee to make any required withdrawal or such payment, transfer or deposit on or before the date occurring five Business Days after the Servicer date such payment, transfer or deposit or such instruction or notice is required to do so be made or given, as the case may be, under the terms of this Agreement, the Indenture or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Days;
(bii) failure on the part of the Servicer duly to observe or perform in any material respect any other of its covenants or agreements of the Servicer set forth in this Agreement which that has an Adverse Effect on the Noteholders of any Series, Class or Tranche and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have has been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent Indenture Trustee, or to the Servicer, the Owner Trustee, Trustee and the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less than 5010% of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 5010% of the aggregate unpaid principal amount of all Series, Classes or Tranches Series to which such failure relatedrelates); or the Servicer shall assign delegates or delegate assigns its duties under this Agreement, except as permitted by Sections 7.023.01(a), 7.05 5.02 and 7.066.02;
(ciii) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove proves to have been incorrect when made, which made and such error has an Adverse Effect on the rights of the Noteholders of any Series, Class or Tranche Series (which determination will be made without regard to whether funds are then available pursuant to any Series Enhancement) and which such Adverse Effect continues for a period of 60 days after the date on which written notice thereof, requiring the same to be remedied, shall have has been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral AgentIndenture Trustee, or to the Servicer, the Owner Trustee, Trustee and the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 5010% of the aggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 5010% of the aggregate unpaid principal amount of all Series, Classes or Tranches Series to which such representation, warranty or certification relates);; or
(div) the Servicer shall consent consents to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been is entered against the Servicer and such decree or order shall have remained remains in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit admits in writing its inability to pay its debts generally as they become due, file files a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make makes any assignment for the benefit of its creditors or voluntarily suspend suspends payment of its obligations; or
(e) then, in the event of any other Servicer Default, so long as the Servicer Default described has not been remedied, either the Indenture Trustee or the Holders of Notes evidencing more than 50% of the aggregate unpaid principal amount of all Notes, by notice then given to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Noteholders) (a “Termination Notice”), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement; provided, however, that if within 60 days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in any Indenture Supplement.
(aaccordance with Section 6.02(c) to act as a Successor Servicer and receives an Officer's ’s Certificate of the Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume will grant a right of first refusal to the role Transferor permitting the Transferor at its option to acquire the Noteholders’ Collateral serviced by the Servicer on the Distribution Date in the next calendar month. The price for the Noteholders’ Collateral will be equal to the sum of Successor Servicerthe Reassignment Amounts with respect to each outstanding Series in the related Indenture Supplement. The Transferor will notify the Indenture Trustee prior to the Record Date (as defined in the Indenture) for the Distribution Date of the acquisition if it is exercising such right of first refusal. If the Transferor exercises such right of first refusal, the Transferor will deposit the price into the Collection Account no later than 1:00 p.m., New York City time, on such Distribution Date in immediately available funds. The price will be allocated and distributed to the Noteholders on such Distribution Date in accordance with the Indenture and each Indenture Supplement in payment of their Notes and will result in a corresponding increase in the Transferor Interest.
(b) After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.026.02, all authority and power of the Servicer under this Agreement shall will pass to and be vested in the Successor Servicer (a "Service Servicing Transfer") ”); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Servicing Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be that are held by the Servicer for depositdeposit on the date of transfer, or which that have been deposited by the Servicer, in the Collection Account for the applicable Asset PoolAccount, or which shall that thereafter be are received with respect to the CollateralReceivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the TrustServicer. The Servicer shall will within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall will promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral Receivables in the manner and at such times as the Successor Servicer shall reasonably requestrequests. To the extent that compliance with this Section shall require requires the Servicer to disclose to the Successor Servicer information of any kind which the Servicer deems to be confidential, the Successor Servicer shall be required to will enter into such customary licensing and confidentiality agreements as the Servicer shall deem deems reasonably necessary to protect its interests. .
(c) Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph clause (ai) above of Section 6.01(a) for a period of 10 ten Business Days after the applicable grace period or under paragraph clause (bii) or (ciii) above of Section 6.01(a) for a period of 60 Business Days after the applicable grace period, shall will not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the a public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causescauses outside the reasonable control of the Servicer. The preceding sentence shall will not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall will provide the Indenture Trustee, the Owner Trustee, the applicable Collateral Agent Transferor and each Transferor any Series Enhancer with an Officer's ’s Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (Ford Credit Floorplan LLC)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuingcontinuing with respect to the Servicer:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give notice or instructions to the Indenture Trustee to make any required withdrawal or such payment, transfer or deposit or to take any action required to be taken under any Enhancement Agreement on or before the date occurring five days after the Servicer date such payment, transfer or deposit or such instruction or notice is required to do so be made or given, as the case may be, under the terms of this Agreement or the terms of any Enhancement Agreement, the Indenture or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Days;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement which has an Adverse Effect a material adverse effect on the Noteholders Investor Certificateholders of any Series, Class or Tranche and which continues unremedied for a period of 60 30 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 3.01 and 7.068.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an Adverse Effect a material adverse effect on the rights of the Noteholders Investor Certificateholders of any Series, Class or Tranche Series and which Adverse Effect material adverse effect continues for a period of 60 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator or other similar official in any bankruptcy proceeding or other bankruptcy, insolvency, readjust- ment readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator or other similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 daysunstayed; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) then, in the event of any other Servicer Default, so long as the Servicer Default described shall not have been remedied, the Trustee, by notice then given in any Indenture Supplement.
writing to the Servicer (aa "Termination Notice"), may terminate all but not less than all of the rights and obligations (other than its obligations that have accrued up to the time of such termination) to act as a Successor Servicer and receives an Officer's Certificate of the Servicer as Servicer under this Agreement and in and to the effect that Receivables and the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicerproceeds thereof. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Indenture Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a "Service Transfer") and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset PoolAccount, or which shall thereafter be received with respect to the CollateralReceivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the TrustServicer. The Servicer shall within 20 Business Days shall, at its expense, promptly transfer a copy of its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestsinterest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (aunder Section 10.01(a) above for a period of 10 Business Days after the applicable grace period or under paragraph (bSection 10.01(b) or (c) above for a period of 60 Business Days after the applicable grace periodDays, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable its best efforts to perform its respective obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trusteeany Agents, any Enhancement Providers, the applicable Collateral Agent Seller and each Transferor the Certificateholders with an Officer's Officers' Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations. The Servicer shall immediately notify the Trustee in writing of any Servicer Default.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Federal Mogul Corp)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice or instructions to the Indenture Trustee to make any required withdrawal or such payment, transfer or deposit on or before the date occurring five Business Days after the Servicer date such payment, transfer or deposit or such instruction or notice is required to do so be made or given, as the case may be, under the terms of this Agreement, the Indenture or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Days;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in the Indenture, any Indenture Supplement or this Agreement which has an Adverse Effect on the Noteholders of any Series, Class or Tranche and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent Indenture Trustee, or to the Servicer, the Owner Trustee, Trustee and the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less than 5010% of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 5010% of the aggregate unpaid principal amount of all Series, Classes or Tranches Series to which such failure relatedrelates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 5.02 and 7.065.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an Adverse Effect on the rights of the Noteholders of any Series, Class or Tranche and which Adverse Effect continues for a period of 60 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral AgentIndenture Trustee, or to the Servicer, the Owner Trustee, Trustee and the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 5010% of the aggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 5010% of the aggregate unpaid principal amount of all Series, Classes or Tranches Series to which such representation, warranty or certification relates);; or
(d) the Servicer shall consent to the appointment of a bankruptcy trustee trustee, conservator, receiver, liquidator or conservator or receiver or liquidator similar official in any bankruptcy proceeding or other insolvency, readjust- ment readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee trustee, conservator, receiver, liquidator or a conservator or receiver or liquidator similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 daysServicer; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) then, in the event of any other Servicer Default, so long as the Servicer Default described in any shall not have been remedied, either the Indenture Trustee or the Holders of Notes evidencing more than 50% of the aggregate unpaid principal amount of all Notes, by notice then given to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Noteholders) (a "Termination Notice"), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement, the Indenture and each Indenture Supplement.
(a; provided, however, if within 60 days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with subsection 7.02(c) to act as a Successor Servicer and receives an Officer's Certificate of the Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume grant a right of first refusal to the role Transferors which would permit the Transferors at their option to purchase the Notes on the Payment Date in the next calendar month. The price for the Notes shall be equal to the sum of Successor Servicerthe amounts specified therefor with respect to each outstanding Series in the related Indenture Supplement. The Transferors shall notify the Indenture Trustee prior to the Record Date for the Payment Date of the acquisition if it is exercising such right of first refusal. If the Transferors exercise such right of first refusal, the Transferors shall deposit the price into the Collection Account not later than 1:00 p.m., New York City time, on such Payment Date in immediately available funds. The price shall be allocated and distributed to Noteholders in accordance with the terms of the Indenture and each Indenture Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.027.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a "Service Transfer") ); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset PoolAccount, or which shall thereafter be received with respect to the CollateralReceivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the TrustServicer. The Servicer shall as soon as practicable, but within not more than 20 Business Days Days, transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests. The Servicer shall pay to the Indenture Trustee and any Successor Servicer the reasonable transition expenses incurred by such person and the agents in connection with any transition of Servicing. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner TrusteeTrust, the applicable Collateral Agent and each Transferor and any Series Enhancer with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (Conseco Finance Credit Card Funding Corp)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice or instructions to the Indenture Trustee to make any required withdrawal or such payment, transfer or deposit or to give notice to the Trustee as to any required drawing or payment under any Enhancement on or before the date occurring five Business Days after the Servicer date such payment, transfer, deposit or drawing or such instruction or notice is required to do so be made or given, as the case may be, under the terms of this Agreement, the Indenture Agreement or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Days;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement, which has an Adverse Effect a material adverse effect on the Noteholders Certificateholders of any Series, Class or Tranche Series then outstanding (without regard to the amount of any Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent Transferor, or to the Servicer, the Owner Trustee, the Indenture Trustee Transferor and the applicable Collateral Agent Trustee by the Holders of Notes Investor Certificates evidencing not less Undivided Interests aggregating more than 50% of the aggregate unpaid principal Invested Amount of any Series adversely affected thereby, and which continues to materially adversely affect the rights of the Certificateholders of any Series then outstanding(without regard to the amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); Enhancement) or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02Section 8.7; provided, 7.05 and 7.06however, that any such failure that relates to any particular Receivable or group of Receivables shall not constitute a Servicer Default if the Servicer has made a deposit in the Collection Account with respect to such failure in accordance with Section 3.3;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has an Adverse Effect a material adverse effect on the rights of the Noteholders Certificateholders of any Series, Class or Tranche Series then outstanding (without regard to the amount of any Enhancement) and which Adverse Effect continues to be incorrect in any material respect and which continues to affect materially and adversely the rights of the Certificateholders of any Series (without regard to the amount of any Enhancement) for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral AgentTransferor, or to the Servicer, the Owner Trustee, the Indenture Trustee Transferor and the applicable Collateral Agent Trustee by the Holders of Notes Investor Certificates evidencing not less Undivided Interests aggregating more than 50% of the aggregate unpaid principal amount Invested Amount of all Notes (any Series adversely affected thereby; or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) any other then, so long as such Servicer Default described shall not have been remedied, the Trustee, the Transferor or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Aggregate Invested Amount, by notice then given in any Indenture Supplement.
writing to the Servicer (aand to the Trustee and the Transferor if given by the Investor Certificateholders) to act as (a Successor Servicer "Termination Notice"), may terminate all of the rights and receives an Officer's Certificate obligations of the Servicer as Servicer under this Agreement and in and to the effect that Receivables and the proceeds thereof and appoint a new Servicer can(a "Service Transfer"). The rights and interests of the Transferor Interest will not in good faith cure be affected by any Service Transfer. The Trustee, upon giving or receiving a Termination Notice shall immediately notify the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role Rating Agencies and any Enhancement Provider of Successor Servicersuch notice. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Indenture Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a "Service Transfer") Servicer, and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to take all reasonable actions to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset PoolAccount, or which shall thereafter be received with respect to the CollateralReceivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the TrustRecoveries. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestsinterest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (aSection 10.1(a) above for a period of 10 Business Days after the applicable grace period or under paragraph (ba delay in or failure of performance referred to in Section 10.1(b) or (c) above for a period of 60 Business Days after the applicable grace period, period shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trusteeany Enhancement Provider, the applicable Collateral Agent Transferor and each Transferor the Holders of Investor Certificates with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations. The Servicer shall immediately notify a Responsible Officer of the Trustee in writing of any Servicer Default.
Appears in 1 contract
Sources: Master Pooling and Servicing Agreement (Fnanb Credit Card Master Trust)
Servicer Defaults. If any one of the following events (each, a ----------------- "Servicer Default") shall occur and be continuing:occur: ----------------
(a) any failure by Servicer to endorse and deposit on a daily basis the Servicer contents of the Lockbox Account pursuant to Section 4.02, to direct the Lockbox ------------ Account Bank to make deposits in the Investment Account at the times specified herein, to make any paymentServicer Advance in accordance with Section 3.03, transfer to make ------------ any deposits to the Investment Account of Collections received or deposit or required to be made by Servicer at the times specified herein, to give instructions or notice or instructions to the Indenture Trustee to make any a required withdrawal drawing under the Letter of Credit or paymentto make a Cash Collateral Withdrawal or to make the payments and deposits on a Deposit Date in accordance with Section 4.08(b), in each case on or before the date --------------- occurring five (5) Business Days after the date such deposit, wire transfer or deposit on the date the Servicer such instruction or notice is required to do so be made or given, as the case may be, under the terms of this Agreement, the Indenture or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Days;
(b) failure on the part of Servicer to deliver the Monthly Statement in accordance with Section 3.09(a); ---------------
(c) failure on the part of Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement which has an Adverse Effect on the Noteholders of any SeriesAgreement, Class or Tranche and which continues unremedied for a period of 60 30 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to Servicer and Trustee by the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes Majority Certificateholders or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related)Bond Insurer; or the , except as provided in Section ------- 9.02
(a) hereof, Servicer shall assign delegate or attempt to delegate its duties under ------- this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06;
(cd) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an Adverse Effect a material adverse effect on the rights of the Noteholders Certificateholders or Bond Insurer or on the ability of any Series, Class or Tranche Servicer to perform its obligations hereunder and which Adverse Effect continues to be incorrect in any material respect for a period of 60 30 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Servicer and Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty Majority Certificateholders or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates)Bond Insurer;
(de) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, ; or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; a petition is filed against Servicer seeking relief under the bankruptcy, arrangement, reorganization or other debtor relief laws of the United States or any state or other competent jurisdiction, and such petition, order, judgment or decree shall have remained in force, undischarged or unstayed for a period of sixty (60) days after its entry;
(f) in the case of Rockford while acting as Servicer, (i) any of the events referred to in Sections 2.04 (h), (j) (other than a "threatened" action, ------------- proceeding or investigation, or an order, judgment or decree "proposed to be issued," as described therein), (l) or (m) of the Purchase Agreement shall have occurred, (ii) Sections 2.04(g) of the Purchase Agreement shall not have been ---------------- complied with, or (ii) the Net Worth Requirement shall not have been satisfied;
(g) there shall at any one time be Defaulted Lease Contracts with Discounted Lease Contract Balances exceeding in the aggregate 3% of the then Initial Aggregate Certificate Principal Balance (in making such determination, the Discounted Lease Contract Balance of a Defaulted Lease Contract shall be determined without giving effect to the proviso in the definition of "Discounted Lease Contract Balance");
(h) there shall at any one time be Delinquent Lease Contracts with Discounted Lease Contract Balances exceeding in the aggregate 8.5% of the Aggregate Discounted Lease Contract Balance;
(i) there shall at any one time be Pre-Default Lease Contracts with Discounted Lease Contract Balances exceeding in the aggregate 2.5% of the Aggregate Discounted Lease Contract Balance;
(j) the ratio of Servicer's indebtedness exclusive of non-recourse indebtedness (as determined in accordance with generally accepted accounting principles consistently applied) to its shareholders' equity shall be greater than 4:1, as of the end of any fiscal quarter of Servicer:
(k) there shall be a downgrading of the rating of any of the Certificates by any Rating Agency;
(l) the Available Amount shall be less than the Minimum Available Amount; or
(em) the Default Charge-off Ratio shall be more than 2.75%; (provided, however, that if, after the Initial Cut-Off Date, Servicer shall -------- ------- merge, consolidate or effect any other Servicer Default described in corporate structural change, including without limitation any Indenture Supplement.
(a) to act as a Successor Servicer and receives an Officer's Certificate sale of the majority of its voting securities or transfer of ownership, the Controlling Party shall have the right, in its sole discretion, to modify the foregoing Servicer Defaults) then, Trustee may or, at the written direction of the Controlling Party, by notice then given in writing to Servicer (a "Termination Notice"), shall terminate all of the rights and ------------------ obligations of Rockford as "Servicer" hereunder and in and to the effect that Trust Assets and the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicerproceeds thereof. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall shall, with the prior written consent of the Controlling Party, pass to and be vested in the Successor Servicer (a "Service Transfer") Back-up Servicer; and, without limitation, the Indenture Seller, Back-up Servicer and Trustee is are hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperate with Seller, Back-up Servicer, the Indenture Controlling Party and Trustee and such any Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral Trust Assets provided for under this Agreement, including, without limitation, and all authority over the Accounts and over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, Servicer in the Collection Investment Account for or the applicable Asset Pool, Certificate Accounts or which shall thereafter be received with respect to the CollateralTrust Assets, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the TrustProceeds. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof Lease Management System relating to the Receivables Trust Assets to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request request, and shall promptly transfer to the Successor Servicer all other records, the Lease Files, correspondence and documents necessary for the continued servicing of the Collateral Trust Assets in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 9.01 shall ------------ require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trustee, the applicable Collateral Agent and each Transferor with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligationsinterest.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Rockford Industries Inc)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice or instructions to the Indenture Trustee to make any required withdrawal or such payment, transfer or deposit on the date the Servicer such payment, transfer or deposit or such instruction or notice is required to do so be made or given, as the case may be, under the terms of this Agreement, the Indenture Agreement or any Indenture SupplementSupplement on or before three Business Days after the date such payment, transfer or within the applicable grace period, which will not exceed 35 Business Daysdeposit is required to be made;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement which or any Supplement that has an Adverse Effect a material adverse effect on the Noteholders holder of the Transferor Certificate or the Certificates of any Series, Class or Tranche and which failure continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, or by the Indenture Trustee or holders of Investor Certificates of any Series evidencing Undivided Interests in the applicable Collateral Agent or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less Trust Assets aggregating more than 50% of the aggregate unpaid principal amount Invested Amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related)Series materially adversely affected thereby; or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.028.2, 7.05 8.5 and 7.068.7;
(c) any representation, warranty or certification made by the Servicer in this Agreement Agreement, any Supplement or in any certificate or report delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has an Adverse Effect a material adverse effect on the rights of the Noteholders holder of the Transferor Certificate or the Investor Certificates of any Series, Class or Tranche Series and which Adverse Effect failure continues unremedied for a period of 60 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by the Holders holders of Notes Investor Certificates of any Series evidencing Undivided Interests in the Trust Assets aggregating not less than 5051% of the aggregate unpaid principal amount Invested Amount of all Notes (any Series materially adversely affected thereby; or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(d) the Servicer shall voluntarily seek, consent to or acquiesce in the appointment benefit or benefits of the Bankruptcy Code or, voluntarily or involuntarily, become a bankruptcy trustee party to (or conservator be made the subject of) any proceeding provided for under the Bankruptcy Code, other than as creditor or receiver or liquidator claimant, and in the event such proceeding is involuntary, the petition instituting same is not dismissed within 90 days of its filing; then, in the event of any bankruptcy proceeding or other insolvencyServicer Default, readjust- ment so long as the Servicer Default shall not have been remedied, the Trustee may, and at the direction of debtthe holders of Investor Certificates evidencing Undivided Interests aggregating more than 51% of the Invested Amount of any Series materially and adversely affected thereby, marshalling of assets and liabilities or similar proceedings of or relating shall by notice then given in writing to the Servicer or of or relating and the Transferor (with a copy thereof to all or substantially all its propertyeach Rating Agency and to the Trustee if given by a Person other than the Trustee (a "Termination Notice"), or a decree or order of a court or agency or supervisory authority having jurisdiction in may terminate the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets rights and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) any other Servicer Default described in any Indenture Supplement.
(a) to act as a Successor Servicer and receives an Officer's Certificate obligations of the Servicer as Servicer under this Agreement and in and to the effect that Receivables and the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicerproceeds thereof. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Indenture Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement and each Supplement shall pass to and be vested in the a Successor Servicer (a "Service Transfer") ); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, which grant of authority is irrevocable and coupled with an interest, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee Trustee, the Transferor and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, Servicer in the Collection Account for the applicable Asset PoolAccount, or which shall thereafter be received with respect to the CollateralReceivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the TrustServicer. The Servicer shall within 20 Business Days transfer at its expense promptly transfer, to the extent it is permitted by applicable law to do so, its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer transfer, to the extent it is permitted by applicable law to do so, to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral Receivables in the manner and at such times as the Successor Servicer shall reasonably requestrequest and shall, to the extent not prohibited by licensing restrictions, provide access to or copies of computer software, including by means of sublicensing arrangements if applicable, to the extent necessary for the continued servicing of the Receivables; provided, however, that the Servicer shall not be required, to the extent it has an ownership interest in any electronic records, computer software or licenses, to transfer, assign, set-over or otherwise convey such ownership interest(s) to the Successor Servicer. The Servicer at its expense shall provide the Successor Servicer with access to any computer hardware in its possession for a reasonable time after the Servicer's termination to the extent necessary for the uninterrupted servicing of the Receivables. Notwithstanding the foregoing, the Servicer shall not be required to provide such access, whether with respect to computer hardware or software, if to provide such access would violate applicable contractual restrictions (including pursuant to any licensing arrangements to which Stone Container is a party); provided, however, that Stone Container shall use its reasonable best efforts in seeking consents or waivers necessary to permit the Successor Servicer to have such access. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trustee, the applicable Collateral Agent and each Transferor with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.be
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Stone Container Corp)
Servicer Defaults. (a) If any one of the following events (a "“Servicer Default"”) shall occur occurs and be continuingis continuing with respect to the Servicer:
(ai) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice or instructions to the Indenture Trustee to make any required withdrawal or such payment, transfer or deposit on or before the date occurring five Business Days after the Servicer date such payment, transfer or deposit or such instruction or notice is required to do so be made or given, as the case may be, under the terms of this Agreement, the Indenture or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Days;
(bii) failure on the part of the Servicer duly to observe or perform in any material respect any other of its covenants or agreements of the Servicer set forth in this Agreement which that has an Adverse Effect on the Noteholders of any Series, Class or Tranche and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have has been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent Indenture Trustee, or to the Servicer, the Owner Trustee, Trustee and the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less than 5010% of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 5010% of the aggregate unpaid principal amount of all Series, Classes or Tranches Series to which such failure relatedrelates); or the Servicer shall assign delegates or delegate assigns its duties under this Agreement, except as permitted by Sections 7.023.01(a), 7.05 5.02 and 7.066.02;
(ciii) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove proves to have been incorrect when made, which made and such error has an Adverse Effect on the rights of the Noteholders of any Series, Class or Tranche Series (which determination will be made without regard to whether funds are then available pursuant to any Series Enhancement) and which such Adverse Effect continues for a period of 60 days after the date on which written notice thereof, requiring the same to be remedied, shall have has been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral AgentIndenture Trustee, or to the Servicer, the Owner Trustee, Trustee and the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 5010% of the aggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 5010% of the aggregate unpaid principal amount of all Series, Classes or Tranches Series to which such representation, warranty or certification relates);; or
(div) the Servicer shall consent consents to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been is entered against the Servicer and such decree or order shall have remained remains in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit admits in writing its inability to pay its debts generally as they become due, file files a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make makes any assignment for the benefit of its creditors or voluntarily suspend suspends payment of its obligations; or
(e) then, in the event of any other Servicer Default, so long as the Servicer Default described has not been remedied, either the Indenture Trustee or the Holders of Notes evidencing more than 50% of the aggregate unpaid principal amount of all Notes, by notice then given to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Noteholders) (a “Termination Notice”), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement; provided, however, that if within 60 days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in any Indenture Supplement.
(aaccordance with Section 6.02(c) to act as a Successor Servicer and receives an Officer's ’s Certificate of the Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume will grant a right of first refusal to the role Transferor permitting the Transferor at its option to acquire the Noteholders’ Collateral serviced by the Servicer on the Distribution Date in the next calendar month. The price for the Noteholders’ Collateral will be equal to the sum of Successor Servicerthe Reassignment Amounts with respect to each outstanding Series in the related Indenture Supplement. The Transferor will notify the Indenture Trustee prior to the Record Date (as defined in the Indenture) for the Distribution Date of the acquisition if it is exercising such right of first refusal. If the Transferor exercises such right of first refusal, the Transferor will deposit the price into the Collection Account no later than 1:00 p.m., New York City time, on such Distribution Date in immediately available funds. The price will be allocated and distributed to the Noteholders on such Distribution Date in accordance with the Indenture and each Indenture Supplement in payment of their Notes and will result in a corresponding increase in the Transferor Interest.
(b) After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.026.02, all authority and power of the Servicer under this Agreement shall will pass to and be vested in the Successor Servicer (a "Service “Servicing Transfer") ”); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Servicing Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be that are held by the Servicer for depositdeposit on the date of transfer, or which that have been deposited by the Servicer, in the Collection Account for the applicable Asset PoolAccount, or which shall that thereafter be are received with respect to the CollateralReceivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the TrustServicer. The Servicer shall will within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall will promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral Receivables in the manner and at such times as the Successor Servicer shall reasonably requestrequests. To the extent that compliance with this Section shall require requires the Servicer to disclose to the Successor Servicer information of any kind which the Servicer deems to be confidential, the Successor Servicer shall be required to will enter into such customary licensing and confidentiality agreements as the Servicer shall deem deems reasonably necessary to protect its interests. .
(c) Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph clause (ai) above of Section 6.01(a) for a period of 10 ten Business Days after the applicable grace period or under paragraph clause (bii) or (ciii) above of Section 6.01(a) for a period of 60 Business Days after the applicable grace period, shall will not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the a public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causescauses outside the reasonable control of the Servicer. The preceding sentence shall will not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall will provide the Indenture Trustee, the Owner Trustee, the applicable Collateral Agent Transferor and each Transferor any Series Enhancer with an Officer's ’s Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (Ford Credit Floorplan LLC)
Servicer Defaults. If any one Any of the following events (shall constitute a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer in its capacity as Servicer to make any payment, transfer or deposit required by any Transaction Document to be made by it or to give instructions or to give notice or instructions to the Indenture Trustee to make any required withdrawal or such payment, transfer or deposit on the date the Servicer is required to do so under the terms of this Agreement, the Indenture or any Indenture Supplement, or within the applicable grace perioddeposit, which will not exceed 35 failure continues unremedied for three Business Days;,
(b) failure on the part of the Servicer in its capacity as Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any other Transaction Document, which failure has an Adverse Effect a material adverse effect on the Noteholders Holders of any Series, Class Series or Tranche Purchased Interest and which continues unremedied for a period of 60 30 days after the date on which written notice of such the failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to Servicer and Trustee by any Investor Certificateholder or Purchaser or, subject to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less than 50% prior written approval of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Required Series Holders for each outstanding Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or the Transferor,
(c) Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 3.1(b) and 7.06;8.3,
(cd) any Daily Report or Monthly Report shall fail to have been correct in any material respect when made or delivered, or shall not have been delivered when required under the terms hereof, and in either case such condition continues unremedied for a period of three Business Days; or any other representation, warranty or certification made by the Servicer in this Agreement any Transaction Document or in any certificate or other document or instrument delivered pursuant to this Agreement any Transaction Document shall prove fail to have been incorrect correct in any material respect when mademade or delivered, which failure has an Adverse Effect a materially adverse effect on the rights of the Noteholders of Certificateholders or any Series, Class or Tranche Purchased Interest and which Adverse Effect materially adverse effect continues unremedied for a period of 60 days 15 Business Days after the date on which written notice thereofof failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agentto Servicer and Trustee by any Investor Certificateholder or Purchaser or, or subject to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 50% prior written approval of the aggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or certification that does not relate to all Required Series Holders for each outstanding Series, Classes or TranchesTransferor, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) any other Bankruptcy Event shall occur with respect to Servicer. In the event of any Servicer Default, so long as such Servicer Default described in any Indenture Supplement.
(a) to act as a Successor Servicer and receives an Officer's Certificate shall not have been remedied, Transferor shall, at the direction of the Trustee or the Required Series Holders for each outstanding Series, by notice then given in writing to Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the (a "Termination Notice"), terminate all (but not less than all) the Indenture Trustee shall assume the role rights and obligations of Successor Servicer. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.02, all authority and power of the as Servicer under this Agreement shall pass and in and to and be vested in the Successor Servicer (a "Service Transfer") and, without limitationReceivables, the Indenture Trustee is hereby authorized Related Transferred Assets and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, proceeds thereof. As soon as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset Pool, or which shall thereafter be received with respect to the Collateralpossible, and in assisting any event within five Business Days, after an Authorized Officer of Servicer has obtained knowledge of the Successor occurrence of any Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the Trust. The Default, Servicer shall within 20 Business Days transfer its electronic records or electronic copies thereof relating to furnish Transferor, Trustee, each Agent and the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request Rating Agencies, and Trustee shall promptly transfer to the Successor furnish each Investor Certificateholder, notice of such Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestsDefault. Notwithstanding the foregoing, a delay in or failure of in performance referred to in paragraph subsection (a) above for a period of 10 ten Business Days after the applicable grace period period, or under paragraph in subsection (b) or (cd) above for a period of 60 30 Business Days after the applicable grace period, shall not constitute a Servicer Default if such the delay or failure could not be have been prevented by the exercise of reasonable diligence by the Servicer and such the delay or failure was caused by an act of God or the public enemy, riots, acts of declared or undeclared war, public disorder, rebellion or sabotageacts of terrorism, epidemics, flood, embargoes, weather, landslides, lightning, fire, hurricanes, earthquakes, floods earthquakes or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement the Transaction Documents, and the Servicer shall provide the Indenture promptly give Transferor, Trustee, the Owner Trustee, the applicable Collateral each Agent and each Transferor with an Officer's Certificate giving prompt notice notifying them of such its failure or delay by it, together with a description of its efforts so to perform its obligationsdelay.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Big Flower Press Holdings Inc)
Servicer Defaults. If any one of the following events (a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice or instructions to the Indenture Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Enhancement on or before the date occurring two Business Days after the date such payment, transfer, deposit, withdrawal or payment, transfer drawing or deposit on the date the Servicer such instruction or notice is required to do so be made or given, as the case may be, under the terms of this AgreementAgreement (PROVIDED, that with respect to payments to the Indenture or any Indenture SupplementInvestor Certificateholders of Invested Amounts, or within the applicable such two Business Day grace period, which will period shall not exceed 35 Business Daysapply);
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement Agreement, which has an Adverse Effect a material adverse effect on the Noteholders Investor Certificateholders of any Series, Class or Tranche Series and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer, the Owner Trustee, the Indenture Trustee Servicer and the applicable Collateral Agent Trustee by the Holders of Notes Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the aggregate unpaid principal amount Invested Amount of all Notes sustaining any Series materially adversely affected thereby and continues to materially adversely affect such Adverse Effect (or, with respect to any Investor Certificateholders for such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related)period; or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06Section 8.7;
(c) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an Adverse Effect a material adverse effect on the rights of the Noteholders Investor Certificateholders of any Series, Class or Tranche Series and which Adverse Effect continues to be incorrect in any material respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee Servicer and the applicable Collateral Agent Trustee by the Holders of Notes Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the aggregate unpaid principal amount Invested Amount of all Notes (any Series materially adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or any other insolvency, readjust- ment readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, ; or a decree or order of a court or agency or supervisory supervi sory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, bankruptcy proceeding or any other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) any other then, so long as such Servicer Default described shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Aggregate Invested Amount, by notice then given in any Indenture Supplement.
writing to the Servicer (aand to the Trustee if given by the Investor Certificateholders) to act as (a Successor Servicer "TERMINATION NOTICE"), may terminate all of the rights and receives an Officer's Certificate obligations of the Servicer to the effect as Servicer under this Agreement. The Servicer agrees that the Servicer cannot in good faith cure the Servicer Default which gave rise to the promptly after it receives such Termination Notice, the Indenture Servicer will at its own expense deliver to the Trustee shall assume or to the role bailee of Successor Servicerthe Trustee a computer file or microfiche list containing a true and complete list of all Accounts, identified by account number and setting forth the Outstanding Balance of each Receivable as of the date of receipt of such Termination Notice. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Indenture Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a "Service Transfer") Servicer; and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder including, including without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Equalization Account, the Interest Funding Account for or the applicable Asset PoolPrincipal Account, and any Series Account, or which shall thereafter be received with respect to the Collateral, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the TrustReceivables. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests. Notwithstanding The Servicer shall, on the foregoingdate of any servicing transfer, a delay transfer all of its rights and obligations under the Enhancement with respect to any Series to the Successor Servicer. In connection with any service transfer, all reasonable costs and expenses (including attorneys, fees) incurred in or failure of performance referred connection with transferring the records, correspondence and other documents with respect to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after Receivables and the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by other Trust Property to the exercise of reasonable diligence by the Successor Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of Amending this Agreement to reflect such succession as Successor Servicer pursuant to this Section 10.1 and the Servicer shall provide the Indenture Trustee, the Owner Trustee, the applicable Collateral Agent and each Transferor with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.Section
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Apparel Retailers Inc)
Servicer Defaults. If any one Any of the following events (shall constitute a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer in its capacity as Servicer to make any payment, transfer or deposit required by any Transaction Document to be made by it or to give instructions or to give notice or instructions to the Indenture Trustee to make any required withdrawal or such payment, transfer or deposit on the date the Servicer is required to do so under the terms of this Agreement, the Indenture or any Indenture Supplement, or within the applicable grace perioddeposit, which will not exceed 35 failure continues unremedied for one Business Days;Day,
(b) failure on the part of the Servicer in its capacity as Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any other Transaction Document, which failure has an Adverse Effect a material adverse effect on the Noteholders Holders of any Series, Class Series or Tranche Purchased Interest and which continues unremedied for a period of 60 30 days after the earlier of (i) the date on which written notice of such the failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to Servicer and Trustee by any Investor Certificateholder or Purchaser and (ii) the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by Holders date on which Servicer became aware of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect failure,
(or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or the c) Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 3.1(b) and 7.06;8.3,
(cd) any Daily Report or Monthly Report shall fail to have been correct in any material respect when made or delivered, or shall not have been delivered when required under the terms hereof, and in either case such condition continues unremedied for a period of three Business Days,
(e) any other representation, warranty or certification made by the Servicer in this Agreement any Transaction Document or in any certificate or other document or instrument delivered pursuant to this Agreement any Transaction Document shall prove fail to have been incorrect correct in any material respect when mademade or delivered, which failure has an Adverse Effect a materially adverse effect on the rights of the Noteholders of Certificateholders or any Series, Class or Tranche Purchased Interest and which Adverse Effect materially adverse effect continues unremedied for a period of 60 15 days after the earlier of (i) the date on which written notice thereofof failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or to Servicer and Trustee by any Investor Certificateholder or Purchaser and (ii) the applicable Collateral Agentdate on which Servicer became aware of such failure, or or
(f) any Bankruptcy Event shall occur with respect to Servicer. In the Servicerevent of any Servicer Default, so long as such Servicer Default shall not have been remedied, Trustee may (and, at the Owner Trusteedirection of the Required Investors, the Indenture Trustee and the applicable Collateral Agent shall), by the Holders of Notes evidencing notice then given in writing to Servicer (a "Termination Notice"), terminate all (but not less than 50% of the aggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(dall) the rights and obligations of Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) any other Servicer Default described in any Indenture Supplement.
(a) to act as a Successor Servicer and receives an Officer's Certificate of the Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicer. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass and in and to and be vested in the Successor Servicer (a "Service Transfer") and, without limitationReceivables, the Indenture Trustee is hereby authorized Related Transferred Assets and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transferproceeds thereof. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset Pool, or which shall thereafter be received with respect to the Collateral, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor provide notice of a Servicer Default in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance accordance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests10.3. Notwithstanding the foregoing, a delay in or failure of in performance referred to in paragraph subsection (a) above for a period of 10 ten Business Days after the applicable grace period period, or under paragraph in subsection (b) or (cd) above for a period of 60 Business Days 30 days after the applicable grace period, shall not constitute a Servicer Default if such the delay or failure could not be have been prevented by the exercise of reasonable diligence by the Servicer and such the delay or failure was caused by an act of God or the public enemy, riots, acts of declared or undeclared war, public disorder, rebellion or sabotageacts of terrorism, epidemics, flood, embargoes, weather, landslides, lightning, fire, hurricanes, earthquakes, floods earthquakes or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement the Transaction Documents, and the Servicer shall provide the Indenture promptly give Trustee, the Owner Trustee, the applicable Collateral each Agent and each Transferor with an Officer's Certificate giving prompt notice notifying them of such its failure or delay by it, together with a description of its efforts so to perform its obligationsdelay.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Ameriserve Food Distribution Inc /De/)
Servicer Defaults. If any one of the following events (a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give notice or instructions to the Indenture Trustee to make any required withdrawal or payment, transfer or deposit on the date the Servicer is required to do so under the terms of this Agreement, the Indenture or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Days;
(b) failure on the part of the Servicer or any Co-Servicer duly to observe or perform in any material respect any other of the covenants or agreements of the Servicer or Co-Servicer set forth in this Agreement or any Relevant Document which has an a Material Adverse Effect on the Noteholders interests of the Beneficiaries as a whole or of the Investor Beneficiaries of any Series, Class or Tranche Applicable Series and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer or, if applicable, any Co-Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less Investor Beneficiaries representing in aggregate more than 50% one-half of the aggregate unpaid principal amount Investor Interests of all Notes sustaining such any Applicable Series adversely affected thereby (copied to the Receivables Trustee) and continues to have a Material Adverse Effect on the interests of an Investor Beneficiary of any Applicable Series for such period;
(or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or b) delegation by the Servicer shall assign or delegate any Co-Servicer of its duties under this AgreementAgreement to any other entity, except as permitted by Sections 7.02, 7.05 and 7.06Clause 3.7;
(c) any relevant representation, warranty or certification made by the Servicer or any Co-Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove hereto proves to have been incorrect when made, which has an a Material Adverse Effect on the rights interests of the Noteholders Investor Beneficiaries of any Series, Class or Tranche Applicable Series and which Adverse Effect continues to be incorrect in any material respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer or, if applicable, any Co-Servicer by the Owner Trustee, the Indenture Trustee an Investor Beneficiary or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less Investor Beneficiaries representing in aggregate more than 50% one-half of the aggregate unpaid principal amount Investor Interests of all Notes any Applicable Series affected thereby (or, with respect copied to the Receivables Trustee) and continues to have a Material Adverse Effect on the interests of an Investor Beneficiary of any Applicable Series affected for such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates)period;
(d) the Servicer or any Co-Servicer shall consent to or take any corporate action relating to the appointment of a bankruptcy receiver, administrator, administrative receiver, liquidator, trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment similar officer of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of it or relating to all or substantially all of its property, revenues and assets or a decree or an order of a the court or agency or supervisory authority having jurisdiction in the premises is made for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the its winding-up up, dissolution, administration or liquidation of its affairs, shall have been entered against the Servicer reorganisation (except for a solvent re-organisation) and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; days or a receiver, administrator, administrative receiver, liquidator, trustee or similar officer of it or relating to all of its revenues and assets is legally and validly appointed;
(e) a duly authorised officer of the Servicer or any Co-Servicer shall admit in writing its inability that the Servicer or such Co-Servicer is unable to pay its debts generally as they become due, file fall due within the meaning of Section 123(1) of the Insolvency ▇▇▇ ▇▇▇▇ or the Servicer or such Co-Servicer makes a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any general assignment for the benefit of or a composition with its creditors or voluntarily suspend suspends payment of its obligations; or
(e) any other obligations with a view to the general readjustment or rescheduling of its indebtedness, then so long as such Servicer Default described shall not have been remedied the Beneficiaries acting together or (as the case may be) the Investor Beneficiaries representing in any Indenture Supplement.
aggregate more than 662/3% of the Aggregate Investor Interest, by notice then given in writing to the Servicer or, if applicable, the Co-Servicer (acopied to the Receivables Trustee) to act as (a Successor Servicer "TERMINATION NOTICE"), may terminate all of the rights and receives an Officer's Certificate obligations of the Servicer to and any Co-Servicer as Servicer and Co-Servicer respectively under this Agreement. For the effect that avoidance of doubt, any Termination Notice given in accordance with this Clause 4.1 shall terminate the appointment of both the Servicer cannot in good faith cure and any Co-Servicer regardless of which entity was the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicer. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.02, all authority and power subject of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a "Service Transfer") and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset Pool, or which shall thereafter be received with respect to the Collateral, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestsDefault. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph Clause 4.1(a), (b) or (c) above for a period of 60 Business Days after the applicable grace periodDays, shall not constitute a Servicer Default if such delay or failure could not be have been prevented by the exercise of reasonable diligence by the Servicer or Co-Servicer, as the case may be, and such delay or failure was caused by an act of God or the public enemyGod, acts of declared or undeclared war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power cuts or similar causes. The preceding sentence shall not relieve the Servicer or Co-Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and any relevant agreement and the Servicer and, if applicable, the Co-Servicer shall provide the Indenture Trusteeany Enhancement Provider, the Owner TrusteeTransferor, the applicable Collateral Agent any Additional Transferor and each Transferor Beneficiary with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 1 contract
Sources: Beneficiaries Servicing Agreement (Barclaycard Funding PLC)
Servicer Defaults. (a) If any one of the following events (a "Servicer Default") shall occur occurs and be continuingis continuing with respect to the Servicer:
(ai) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice or instructions to the Indenture Trustee to make any required withdrawal or such payment, transfer or deposit on or before the date occurring five Business Days after the Servicer date such payment, transfer or deposit or such instruction or notice is required to do so be made or given, as the case may be, under the terms of this Agreement, the Indenture or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Days;
(bii) failure on the part of the Servicer duly to observe or perform in any material respect any other of its covenants or agreements of the Servicer set forth in this Agreement which that has an Adverse Effect on the Noteholders of any Series, Class or Tranche and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have has been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent Indenture Trustee, or to the Servicer, the Owner Trustee, Trustee and the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less than 5010% of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 5010% of the aggregate unpaid principal amount of all Series, Classes or Tranches Series to which such failure relatedrelates); or the Servicer shall assign delegates or delegate assigns its duties under this Agreement, except as permitted by Sections 7.023.01(a), 7.05 5.02 and 7.066.02;
(ciii) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove proves to have been incorrect when made, which made and such error has an Adverse Effect on the rights of the Noteholders of any Series, Class or Tranche Series (which determination will be made without regard to whether funds are then available pursuant to any Series Enhancement) and which such Adverse Effect continues for a period of 60 days after the date on which written notice thereof, requiring the same to be remedied, shall have has been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral AgentIndenture Trustee, or to the Servicer, the Owner Trustee, Trustee and the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 5010% of the aggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 5010% of the aggregate unpaid principal amount of all Series, Classes or Tranches Series to which such representation, warranty or certification relates);; or
(div) the Servicer shall consent consents to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been is entered against the Servicer and such decree or order shall have remained remains in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit admits in writing its inability to pay its debts generally as they become due, file files a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make makes any assignment for the benefit of its creditors or voluntarily suspend suspends payment of its obligations; or
(e) then, in the event of any other Servicer Default, so long as the Servicer Default described in has not been remedied, either the Indenture Trustee or the Holders of Notes evidencing more than 50% of the aggregate unpaid principal amount of all Notes, by notice then given to the Servicer, the Back-up Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Noteholders) (a "Termination Notice"), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement; provided, however, that if within 60 days of receipt of a Termination Notice the Back-up Servicer has not succeeded to the rights and obligations of the Servicer, a Successor Servicer has not been appointed and the Indenture Trustee has not received any Indenture Supplement.
(a) bids from Eligible Servicers to act as a Successor Servicer in accordance with Section 6.02(c) and the Indenture Trustee receives an Officer's Certificate of the Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume will grant a right of first refusal to the role Transferor permitting the Transferor at its option to acquire the Noteholders' Collateral serviced by the Servicer on the Distribution Date in the next calendar month. The price for the Noteholders' Collateral will be equal to the sum of Successor Servicerthe Reassignment Amounts with respect to each outstanding Series in the related Indenture Supplement. The Transferor will notify the Indenture Trustee prior to the Record Date (as defined in the Indenture) for the Distribution Date of the acquisition if it is exercising such right of first refusal. If the Transferor exercises such right of first refusal, the Transferor will deposit the price into the Collection Account no later than 1:00 p.m., New York City time, on such Distribution Date in immediately available funds. The price will be allocated and distributed to the Noteholders on such Distribution Date in accordance with the Indenture and each Indenture Supplement in payment of their Notes and will result in a corresponding increase in the Transferor Interest.
(b) After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.026.02, all authority and power of the Servicer under this Agreement shall will pass to and be vested in the Successor Servicer (a "Service Servicing Transfer") ); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Servicing Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be that are held by the Servicer for depositdeposit on the date of transfer, or which that have been deposited by the Servicer, in the Collection Account for the applicable Asset PoolAccount, or which shall that thereafter be are received with respect to the CollateralReceivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the TrustServicer. The Servicer shall will within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall will promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral Receivables in the manner and at such times as the Successor Servicer shall reasonably requestrequests. To the extent that compliance with this Section shall require requires the Servicer to disclose to the Successor Servicer information of any kind which the Servicer deems to be confidential, the Successor Servicer shall be required to will enter into such customary licensing and confidentiality agreements as the Servicer shall deem deems reasonably necessary to protect its interests. .
(c) Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph clause (ai) above of Section 6.01(a) for a period of 10 ten Business Days after the applicable grace period or under paragraph clause (bii) or (ciii) above of Section 6.01(a) for a period of 60 Business Days after the applicable grace period, shall will not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the a public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causescauses outside the reasonable control of the Servicer. The preceding sentence shall will not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall will provide the Indenture Trustee, the Owner Trustee, the applicable Collateral Agent Transferor, the Back-up Servicer and each Transferor any Series Enhancer with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (Ford Credit Floorplan Corp)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give notice or instructions to the Indenture Trustee to make any required withdrawal or payment, transfer or deposit on the date the Servicer is required to do so under the terms of this Agreement, the Indenture or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Days;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement which has an Adverse Effect on the Noteholders of any Series, Class or Tranche and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06;
(c) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an Adverse Effect on the rights of the Noteholders of any Series, Class or Tranche and which Adverse Effect continues for a period of 60 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) any other Servicer Default described in any Indenture Supplement.;
(a) to act as a Successor Servicer and receives an Officer's Certificate of the Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicer. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a "Service Transfer") and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset Pool, or which shall thereafter be received with respect to the Collateral, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trustee, the applicable Collateral Agent and each Transferor with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (Chase Manhattan Bank Usa)
Servicer Defaults. If any one of the following events (a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give notice or instructions to the Indenture Trustee to make any required withdrawal or payment, transfer or deposit on the date the Servicer is required to do so under the terms of this Agreement, the Indenture or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Days;
(b) failure on the part of the Servicer or any Co-Servicer duly to observe or perform in any material respect any other of the covenants or agreements of the Servicer or Co-Servicer set forth in this Agreement or any Relevant Document which has an a Material Adverse Effect on the Noteholders interests of the Beneficiaries as a whole or of the Investor Beneficiaries of any Series, Class or Tranche Applicable Series and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer or, if applicable, any Co-Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less Investor Beneficiaries representing in aggregate more than 50% one-half of the aggregate unpaid principal amount Investor Interests of all Notes sustaining such any Applicable Series adversely affected thereby (copied to the Receivables Trustee) and continues to have a Material Adverse Effect on the interests of an Investor Beneficiary of any Applicable Series for such period;
(or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or b) delegation by the Servicer shall assign or delegate any Co-Servicer of its duties under this AgreementAgreement to any other entity, except as permitted by Sections 7.02, 7.05 and 7.06Clause 3.7;
(c) any relevant representation, warranty or certification made by the Servicer or any Co-Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove hereto proves to have been incorrect when made, which has an a Material Adverse Effect on the rights interests of the Noteholders Investor Beneficiaries of any Series, Class or Tranche Applicable Series and which Adverse Effect continues to be incorrect in any material respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer or, if applicable, any Co-Servicer by the Owner Trustee, the Indenture Trustee an Investor Beneficiary or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less Investor Beneficiaries representing in aggregate more than 50% one-half of the aggregate unpaid principal amount Investor Interests of all Notes any Applicable Series affected thereby (or, with respect copied to the Receivables Trustee) and continues to have a Material Adverse Effect on the interests of an Investor Beneficiary of any Applicable Series affected for such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates)period;
(d) the Servicer or any Co-Servicer shall consent to or take any corporate action relating to the appointment of a bankruptcy receiver, administrator, administrative receiver, liquidator, trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment similar officer of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of it or relating to all or substantially all of its property, revenues and assets or a decree or an order of a the court or agency or supervisory authority having jurisdiction in the premises is made for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the its winding-up up, dissolution, administration or liquidation of its affairs, shall have been entered against the Servicer reorganisation (except for a solvent re-organisation) and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; days or a receiver, administrator, administrative receiver, liquidator, trustee or similar officer of it or relating to all of its revenues and assets is legally and validly appointed;
(e) a duly authorised officer of the Servicer or any Co-Servicer shall admit in writing its inability that the Servicer or such Co-Servicer is unable to pay its debts generally as they become due, file fall due within the meaning of Section 123(1) of the Insolvency Act 1986 or the Servicer or such Co-Servicer makes a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment general ▇▇▇▇▇▇▇ent for the benefit of or a composition with its creditors or voluntarily suspend suspends payment of its obligations; or
(e) any other obligations with a view to the general readjustment or rescheduling of its indebtedness, then so long as such Servicer Default described shall not have been remedied the Beneficiaries acting together or (as the case may be) the Investor Beneficiaries representing in any Indenture Supplement.
aggregate more than 662/3% of the Aggregate Investor Interest, by notice then given in writing to the Servicer or, if applicable, the Co-Servicer (acopied to the Receivables Trustee) to act as (a Successor Servicer "TERMINATION NOTICE"), may terminate all of the rights and receives an Officer's Certificate obligations of the Servicer to and any Co-Servicer as Servicer and Co-Servicer respectively under this Agreement. For the effect that avoidance of doubt, any Termination Notice given in accordance with this Clause 4.1 shall terminate the appointment of both the Servicer cannot in good faith cure and any Co-Servicer regardless of which entity was the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicer. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.02, all authority and power subject of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a "Service Transfer") and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset Pool, or which shall thereafter be received with respect to the Collateral, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestsDefault. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph Clause 4.1(a), (b) or (c) above for a period of 60 Business Days after the applicable grace periodDays, shall not constitute a Servicer Default if such delay or failure could not be have been prevented by the exercise of reasonable diligence by the Servicer or Co-Servicer, as the case may be, and such delay or failure was caused by an act of God or the public enemyGod, acts of declared or undeclared war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power cuts or similar causes. The preceding sentence shall not relieve the Servicer or Co-Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and any relevant agreement and the Servicer and, if applicable, the Co-Servicer shall provide the Indenture Trusteeany Enhancement Provider, the Owner TrusteeTransferor, the applicable Collateral Agent any Additional Transferor and each Transferor Beneficiary with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 1 contract
Sources: Beneficiaries Servicing Agreement (Barclaycard Funding PLC)
Servicer Defaults. If The happening of any one or more of the following events (shall constitute a "Servicer Default") shall occur and be continuingDefault hereunder:
(a) any Any failure by the Servicer Servicers to make any payment, deposit, advance or transfer or deposit or to give notice or instructions to the Indenture Trustee to make any required withdrawal or payment, transfer or deposit on the date the Servicer is of funds required to do so be paid, deposited, advanced or transferred under the terms of this Agreement, and such failure continues unremedied for five (5) Business Days after discovery by the Indenture Servicers of such failure or any Indenture Supplement, or within receipt by the applicable grace period, which will not exceed 35 Business DaysServicers of notice of such failure;
(b) failure Failure on the part of the Servicer Servicers duly to observe or perform in any material respect any other of the covenants or agreements of the Servicer set forth contained in this Agreement which has an Adverse Effect on or the Noteholders of any Series, Class or Tranche and Supervisory Servicing Agreement which continues unremedied for a period of 60 thirty (30) days after the date on which earlier to occur of the Servicers obtaining actual knowledge of such failure or the Servicers' receipt of written notice of such failurefailure or breach as the case may be; provided, requiring however, if such failure shall be of a nature that it cannot be cured within thirty (30) days, such failure shall not constitute a Servicer Default hereunder if within such 30-day period the same to be remedied, shall have been given Servicers give notice to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less than 50% Supervisory Servicer of the aggregate unpaid principal amount of all Notes sustaining corrective action it proposes to take, which corrective action is agreed in writing by the Trustee to be satisfactory and the Servicers shall thereafter pursue such Adverse Effect corrective action diligently until such default is cured but in no event longer than ninety (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.0690) days;
(c) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an Adverse Effect on the rights of the Noteholders of any Series, Class or Tranche and which Adverse Effect continues for a period of 60 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a A decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer a Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 ninety (90) days; ;
(d) A Servicer shall consent to the appointment of a conservator or the receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to such Servicer or of or relating to all or substantially all of its property;
(e) A Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any an assignment for the benefit of its creditors or voluntarily suspend payment payments of its obligations;
(f) A Servicer shall cease to be an Eligible Servicer;
(g) A material adverse change occurs in the financial condition of a Servicer, which change materially impairs the ability of the Servicer to perform its obligations under this Agreement; or
(eh) any other Any representation or warranty made by a Servicer Default described in any Indenture Supplement.
(a) Transaction Document proves to act as have been incorrect in any material respect when made, which has a Successor Servicer and receives an Officer's Certificate of the Servicer to the material adverse effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicer. After receipt by the Servicer of a Termination Notice, and on the date that Noteholders and which continues to have a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and material adverse effect or be vested incorrect in the Successor Servicer (a "Service Transfer") and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset Pool, or which shall thereafter be received with any material respect to the Collateral, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days thirty (30) days after written notice of such inaccuracy, requiring it to be remedied, has been given to the applicable grace period Servicers by the Trustee, the Supervisory Servicer or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace periodany Noteholder; provided, shall not constitute a Servicer Default however, if such delay or failure could inaccuracy is of a nature that it cannot be prevented remedied within such 30-day period and the Servicer gives notices to the Trustee and the Supervisory Servicer of the corrective action it proposes to take, which corrective action is agreed in writing by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts Trustee to perform its obligations in a timely manner in accordance with the terms of this Agreement be satisfactory and the Servicer shall provide thereafter pursue such corrective action diligently until such default is cured but in no event longer than ninety (90) days from the Indenture Trustee, the Owner Trustee, the applicable Collateral Agent and each Transferor with an Officer's Certificate giving prompt notice date of such failure or delay by it, together with a description of its efforts so to perform its obligationsnotice.
Appears in 1 contract
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuingcontinuing after the Certificate Trust Termination Date:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice or instructions to the Indenture Trustee to make any required withdrawal or such payment, transfer or deposit or to give notice to the Indenture Trustee as to any required drawing or payment under any Enhancement on or before the date occurring five Business Days after the Servicer date such payment, transfer, deposit or drawing or such instruction or notice is required to do so be made or given, as the case may be, under the terms of this Agreement, the Indenture or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Days;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement Agreement, which has an Adverse Effect a material adverse effect on the Noteholders of any Series, Class or Tranche Series then outstanding (without regard to the amount of any Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent Transferor, or to the Servicer, the Owner Trustee, Transferor and the Indenture Trustee and by the applicable Collateral Agent by Holders of Notes evidencing not less aggregating more than 5025% of the aggregate unpaid outstanding principal amount of all Notes sustaining such Adverse Effect (orany Series adversely affected thereby, with respect and which continues to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% materially adversely affect the rights of the aggregate unpaid principal Noteholders of any Series then outstanding (without regard to the amount of all Series, Classes or Tranches to which such failure related); any Enhancement) or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02Section 5.7; provided, 7.05 and 7.06however, that any such failure that relates to any particular Receivable or group of Receivables shall not constitute a Servicer Default if the Servicer has made a deposit in the Collection Account with respect to such failure in accordance with Section 3.3;
(c) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an Adverse Effect a material adverse effect on the rights of the Noteholders of any Series, Class or Tranche Series then outstanding (without regard to the amount of any Enhancement) and which Adverse Effect continues to be incorrect in any material respect and which continues to affect materially and adversely the rights of the Noteholders of any Series (without regard to the amount of any Enhancement) for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral AgentTransferor, or to the Servicer, the Owner Trustee, Transferor and the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less Undivided Interests aggregating more than 50% of the aggregate unpaid outstanding principal amount of all Notes (any Series adversely affected thereby; or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) any other then, so long as such Servicer Default described shall not have been remedied, the Indenture Trustee, the Transferor or the Holders of Notes aggregating more than 50% of the Aggregate Invested Amount, by notice then given in any writing to the Servicer (and to the Indenture Supplement.
Trustee and the Transferor if given by the Noteholders) (a) to act as a Successor Servicer "Termination Notice"), may terminate all of the rights and receives an Officer's Certificate obligations of the Servicer as Servicer under this Agreement and in and to the effect that Receivables and the proceeds thereof and appoint a new Servicer can(a "Service Transfer"). The rights and interests of the Transferor Interest will not in good faith cure be affected by any Service Transfer. The Indenture Trustee, upon giving or receiving a Termination Notice shall immediately notify the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role Rating Agencies and any Enhancement Provider of Successor Servicersuch notice. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Indenture Trustee pursuant to Section 10.027.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a "Service Transfer") Servicer, and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to take all reasonable actions to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset PoolAccount, or which shall thereafter be received with respect to the CollateralReceivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the TrustRecoveries. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 7.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestsinterest; provided, however, that no such agreement shall prohibit (i) disclosure of any and all information that is or becomes publicly known, or information obtained by such Successor Servicer from sources other than the other parties hereto, (ii) disclosure of any and all information (A) if required to do so by any applicable law, rule or regulation, (B) to any government agency or regulatory body having or claiming authority to regulate or oversee any aspects of such Successor Servicer's business, (C) pursuant to any subpoena, civil investigative demand or similar demand or request of any court, regulatory authority, arbitrator or arbitration to which the Successor Servicer or any Affiliate or an officer, director, employer or shareholder thereof is a party or (D) to any Affiliate, independent or internal auditor, agent, employee or attorney of such Successor Servicer having a need to know the same, provided that such Successor Servicer advises such recipient of the confidential nature of such disclosed information, or (iii) any other disclosure authorized by the Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (aSection 7.1(a) above for a period of 10 Business Days after the applicable grace period or under paragraph (ba delay in or failure of performance referred to in Section 7.1(b) or (c) above for a period of 60 Business Days after the applicable grace period, period shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trusteeany Enhancement Provider, the applicable Collateral Agent Transferor and each Transferor the Holders of Notes with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations. The Servicer shall immediately notify a Responsible Officer of the Indenture Trustee in writing of any Servicer Default.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (Dc Funding International Inc)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice or instructions to the Indenture Trustee to make any required withdrawal or such payment, transfer or deposit on or before the date occurring five (5) Business Days after the Servicer date such payment, transfer or deposit or such instruction or notice is required to do so be made or given, as the case may be, under the terms of this Agreement, the Indenture or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Days;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement, the Indenture, any Indenture Supplement, the Affinity Card Agreement which has an Adverse Effect on or the Noteholders of any Series, Class or Tranche Facilities Management Agreement and which continues unremedied for a period of 60 sixty (60) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent Indenture Trustee, or to the Servicer, the Owner Trustee, Trustee and the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less than 5010% of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect Outstanding (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 5010% of the aggregate unpaid principal amount of all Series, Classes or Tranches Notes Outstanding of all Series to which such failure relatedrelates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 6.02 and 7.066.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an Adverse Effect on the rights of the Noteholders of any Series, Class or Tranche and which Adverse Effect continues for a period of 60 sixty (60) days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral AgentIndenture Trustee, or to the Servicer, the Owner Trustee, Trustee and the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 5010% of the aggregate unpaid principal amount of all Notes Outstanding (or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 5010% of the aggregate unpaid principal amount of all Series, Classes or Tranches Notes Outstanding of all Series to which such representation, warranty or certification relates);; or
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment readjustment of debt, marshalling of assets and liabilities or similar proceedings Proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or an action seeking a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedingsProceedings, or the winding-up or liquidation of its affairs, shall have been entered commenced against the Servicer and such decree or order action shall have remained in force undischarged or unstayed for a period of 60 dayssixty (60) days or an order or decree providing for such relief shall have been entered; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) then, in the event of any other Servicer Default, so long as the Servicer Default described in any shall not have been remedied, either the Indenture Trustee or the Holders of Notes evidencing a majority of the aggregate unpaid principal amount of all Notes Outstanding, by notice then given to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Noteholders) (a "Termination Notice"), may terminate all but not less than all of the rights and obligations of the Servicer as Servicer under this Agreement, the Indenture and each Indenture Supplement.
; provided, however, if within sixty (a60) days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with Section 8.02(c) to act as a Successor Servicer and receives an Officer's Certificate of the Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume grant a right of first refusal to the role Transferor which would permit the Transferor at its option to purchase the Notes on the Distribution Date in the next calendar month. The purchase price for the Notes purchased pursuant to the preceding paragraph shall be equal to the sum of Successor Servicerthe amounts specified therefor with respect to each outstanding Series in the related Indenture Supplement. The Transferor shall notify the Indenture Trustee prior to the Record Date for the Distribution Date of the purchase if it is exercising such right of first refusal. If the Transferor exercises such right of first refusal, the Transferor shall deposit the purchase price into the Collection Account not later than 11:00 a.m., New York City time, on the Transfer Date preceding such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Noteholders in accordance with the terms of the Indenture and each Indenture Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.028.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a "Service Transfer") ); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset PoolAccount, or which shall thereafter be received with respect to the CollateralReceivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the TrustServicer. The Servicer shall within 20 twenty (20) Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral Receivables in the manner and at such times as the Successor Servicer shall reasonably request. The predecessor Servicer shall be responsible for all expenses incurred in transferring the servicing duties to the Successor Servicer. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 ten (10) Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 sixty (60) Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner TrusteeIssuer, the applicable Collateral Agent and each Transferor and any Series Enhancer with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (Compucredit Corp)
Servicer Defaults. If any one of the following events (each being a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit (including pursuant to Section 3.04(b)), or, if applicable, to give instructions or notice to the Trustee to make such payment, transfer or deposit, or to give notice or instructions to the Indenture Trustee as to make any required withdrawal or payment, transfer or deposit on the date the Servicer is required action to do so be taken under the terms of this any Enhancement Agreement, the Indenture or any Indenture Supplementfailure to provide a Determination Date Certificate to the Trustee, or in each case, within two Business Days after the applicable grace period, which will not exceed 35 Business Days;same shall become due; or
(b) failure on the part of the Servicer duly shall fail to observe or perform in any material respect any other covenants covenant or agreements agreement applicable to it contained herein which has a material adverse effect on any Beneficiary if such failure shall remain unremedied for ten days after the first date on which any Responsible Official of the Servicer set forth in this Agreement which has an Adverse Effect on the Noteholders of any Series, Class knew or Tranche and which continues unremedied for a period of 60 days after the date on which written notice should have known of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect (; or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06;
(c) any representation, warranty or certification made or deemed made by the Servicer under or in connection with this Agreement Agreement, or in any certificate or information delivered pursuant to or in connection with this Agreement Agreement, shall prove to have been incorrect when made, which has an Adverse Effect in any material respect on the rights or as of the Noteholders of any Series, Class date made or Tranche and which Adverse Effect continues for a period of 60 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes (deemed made; or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(d) the Servicer an Insolvency Event shall consent occur with respect to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligationsServicer; or
(e) the Servicer assigns its duties under this Agreement, except as specifically permitted by Section 8.02; or
(f) The Servicer shall at any other time fail to have Consolidated Tangible Net Worth of at least $1,000,000; then, as long as such Servicer Default described shall not have been remedied and is continuing, either the Trustee (unless otherwise directed by a Majority in any Indenture Interest of each outstanding Series or, if so specified in the related Supplement.
, the Enhancement Provider for such Series) or the Majority in Interest of each Series (aor, if so specified in the related Supplement, the Enhancement Provider for such Series), by notice then given in writing to the Servicer (and to the Trustee if given by such Investor Certificateholders) (each such being a "Termination Notice"), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement. The Trustee shall be deemed to act as have knowledge of a Successor Servicer Default only if a Responsible Official of the Trustee has actual knowledge or if a Responsible Official of the Trustee has received written notice thereof. Notwithstanding the foregoing, a delay in or failure of performance referred to in Section 10.01(a) or (b) for a period of five Business Days shall not constitute a Servicer Default if such delay or failure could not have been prevented by the exercise of reasonable diligence by the Servicer and receives such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods, union strikes, work stoppages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement, and the Servicer shall provide the Trustee, the Transferor, any Enhancement Provider and the Investor Certificateholders with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations. A Majority in Interest of each outstanding Series (or, if so specified in the related Supplement, the Enhancement Provider for such Series) may, on behalf of all Holders, waive any default by the Servicer in the performance of its obligations hereunder and its consequences, except the failure to make any distributions or payments required to be made to Holders or to make any required deposits of any amounts to be so distributed or paid. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicerextent expressly so waived. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Indenture Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the such Successor Servicer (a "Service Transfer") and, without limitation, the Indenture Trustee is hereby authorized authorized, empowered and empowered instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate cooperate, at its expense, with the Indenture Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral Receivables as provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer such Service Transfer be held by the Servicer for depositdeposit to the Concentration Account, any Collection Account, the Trustee's Account or the Transferor's Account, or which have been deposited by the ServicerServicer to the Concentration Account, in the any Collection Account for the applicable Asset PoolAccount, or any other account, or which shall thereafter be received with respect to the CollateralReceivables, (ii) taking such measures as shall be reasonably requested by the Transferor to protect and maintain the security and confidentiality of all Confidential Information in accordance with Section 8.07 and (iii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include (x) assisting any accountants selected by the Successor Servicer to verify collection records and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable reports made prior to the TrustService Transfer and (y) assisting to make the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Servicer Transfer. The Servicer shall shall, at its expense, within 20 five Business Days transfer its electronic of such Service Transfer, (A) assemble such documents, instruments and other records or electronic copies thereof relating to (including computer tapes and disks), which evidence the Receivables and the other Trust Assets, and which are necessary or desirable to collect the Receivables, and shall make the same available to the Successor Servicer or the Trustee or its designee at a place selected by the Successor Servicer or the Trustee and in such electronic form as the Successor Servicer or the Trustee may reasonably request request, and shall promptly transfer (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Receivables in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all other recordssuch cash, correspondence checks and documents necessary for the continued servicing of the Collateral in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose instruments to the Successor Servicer information of or the Trustee or its designee. At any kind which time following a Termination Notice:
(1) the Servicer deems shall, at the Trustee's request and at the Servicer's expense, give notice of the Trust's interest in the Receivables to the related Obligors and direct that payments be confidential, made directly to the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as Trustee or its designee;
(2) if the Servicer shall deem reasonably necessary fails to protect its interests. Notwithstanding provide the foregoing, a delay in or failure of performance referred notice to the Obligors required in paragraph (a1) above for a period above, the Trustee may direct the Obligors of 10 Business Days after Receivables, or any of them, that payment of all amounts payable under any such Receivables be made directly to the applicable grace period Trustee or under paragraph its designee; and
(b3) or (c) above for a period each of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by Transferor and each Holder hereby authorizes the exercise Trustee to take any and all steps in the Transferor's name and on behalf of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement Transferor and the Servicer shall provide Holders necessary or desirable, in the Indenture determination of the Trustee, to collect all amounts due under any and all Receivables, including endorsing the Owner Trustee, the applicable Collateral Agent Transferor's name on checks and each Transferor with an Officer's Certificate giving prompt notice other instruments representing Collections in respect of such failure or delay by it, together with a description of its efforts so to perform its obligationsReceivables and enforcing such Receivables.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Zenith Electronics Corp)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice or instructions to the Indenture Trustee to make any required withdrawal or such payment, transfer or deposit on or before the date occurring five Business Days after the Servicer date such payment, transfer or deposit or such instruction or notice is required to do so be made or given, as the case may be, under the terms of this Agreement, the Indenture Agreement or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Days;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has an Adverse Effect a material adverse effect on the Noteholders Investor Certificateholders of any Series, Class or Tranche Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer, the Owner Trustee, the Indenture Trustee Servicer and the applicable Collateral Agent Trustee by Holders of Notes Investor Certificates evidencing not less than 5010% of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect Investor Certificates (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 5010% of the aggregate unpaid principal amount of all Series, Classes or Tranches Series to which such failure relatedrelates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 8.02 and 7.068.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has an Adverse Effect a material adverse effect on the rights of the Noteholders Investor Certificateholders of any Series, Class or Tranche Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which Adverse Effect material adverse effect continues for a period of 60 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee Servicer and the applicable Collateral Agent Trustee by the Holders of Notes Investor Certificates evidencing not less than 5010% of the aggregate unpaid principal amount of all Notes Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 5010% of the aggregate unpaid principal amount of all Series, Classes or Tranches Series to which such representation, warranty or certification relates);; or
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) then, in the event of any other Servicer Default, so long as the Servicer Default described shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificates, by notice then given to the Servicer (and to the Trustee and any Series Enhancement if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any Indenture Supplement.
(abids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer's Certificate of the Servicer Sellers to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume grant a right of first refusal to the role Sellers which would permit the Sellers at their option to purchase the Certificateholders' Interest on the Distribution Date in the next calendar month. The purchase price for the Certificateholders' Interest shall be equal to the sum of Successor Servicerthe amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a "Service Transfer") ); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-attorney- in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset PoolAccount, or which shall thereafter be received with respect to the CollateralReceivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the TrustServicer. The Servicer shall within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestsinterest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner TrusteeSellers, any Series Enhancer and the applicable Collateral Agent and each Transferor Investor Certificateholders with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Citibank South Dakota N A)
Servicer Defaults. If any one of the following events (a ----------------- "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice or instructions to the Indenture Trustee pursuant to make any required withdrawal Article IV on or before the date such payment, transfer transfer, deposit or deposit on the date the Servicer such instruction or notice is required to do so be made or given, as the case may be, under the terms of this Agreement, the Indenture or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 failure continues unremedied for a period of five Business Days;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement Agreement, which has an Adverse Effect a material adverse effect on the Noteholders of any Series, Class or Tranche Certificateholders and which continues unremedied for a period of 60 days after the earlier of discovery by a Servicing Officer or the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer, the Owner Trustee, the Indenture Trustee Servicer and the applicable Collateral Agent Trustee by the Holders of Notes Certificates evidencing not less than 50% of the aggregate unpaid principal amount of all Notes sustaining Certificate Principal Balance and continues to materially adversely affect such Adverse Effect (Certificateholders for such period; or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06;
(c) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an Adverse Effect a material adverse effect on the rights of the Noteholders of any Series, Class or Tranche Certificateholders and which Adverse Effect continues to be incorrect in any material respect for a period of 60 30 days after the earlier of discovery by a Servicing Officer or the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee Servicer and the applicable Collateral Agent Trustee by the Holders of Notes the Certificates evidencing not less than 50% of the aggregate unpaid principal amount of all Notes (Certificate Principal Balance and continues to materially adversely affect such Certificateholders for such period; or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) any other then, so long as such Servicer Default described shall not have been remedied, either the Trustee, or the Holders of Certificates evidencing more than 50% of the Certificate Principal Balance by notice then given in any Indenture Supplement.
writing to the Servicer (aand to the Trustee if given by the Certificateholders) to act as (a Successor Servicer "Termination Notice"), may terminate all of the rights and receives an Officer's Certificate obligations of the Servicer to the effect that the as Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicerunder this Agreement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Indenture Trustee pursuant to Section 10.029.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a "Service Transfer") Servicer; and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder including, including without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset Pool, or which shall thereafter be received with respect to the Collateral, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the TrustReceivables. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 9.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (asubsection 9.1(a) above for a period of 10 Business Days after the applicable grace period or under paragraph subsection 9.1(b) or (c) for a period of 60 Business Days in addition to any period provided in subsection 9.1(a), (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default for such additional 10 or 60 Business Days if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power outages, communications outages, computer failure or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trustee, Transferor and the applicable Collateral Agent and each Transferor Holders of Certificates with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 1 contract
Servicer Defaults. If any one of the following events (a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice or instructions to the Indenture Trustee to make any required withdrawal or such payment, transfer or deposit on or before the date occurring five (5) Business Days after the Servicer date such payment, transfer or deposit or such instruction or notice is required to do so be made or given, as the case may be, under the terms of this Agreement, the Indenture or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Days;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement which has an Adverse Effect on the Noteholders of any Series, Class or Tranche and which continues unremedied for a period of 60 sixty (60) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent Indenture Trustee, or to the Servicer, the Owner Trustee, Trustee and the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less than 5010% of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 5010% of the aggregate unpaid principal amount of all Series, Classes or Tranches Series to which such failure relatedrelates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 5.02 and 7.065.07;
(c) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an Adverse Effect on the rights of the Noteholders of any Series, Class or Tranche Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which Adverse Effect continues for a period of 60 sixty (60) days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral AgentIndenture Trustee, or to the Servicer, the Owner Trustee, Trustee and the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 5010% of the aggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 5010% of the aggregate unpaid principal amount of all Series, Classes or Tranches Series to which such representation, warranty or certification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 sixty (60) days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) any other Servicer Default described in any Indenture Supplement.
(a) to act as a Successor Servicer and receives an Officer's Certificate of the Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicer. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a "Service Transfer") and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset Pool, or which shall thereafter be received with respect to the Collateral, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trustee, the applicable Collateral Agent and each Transferor with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.,
Appears in 1 contract
Sources: Transfer and Servicing Agreement (Associates Credit Card Receivables Corp)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice or instructions to the Indenture Trustee pursuant to Article IV or any Supplement or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or payment, transfer drawing or deposit on the date the Servicer such instruction or notice is required to do so be made or given, as the case may be, under the terms of this Agreement, the Indenture Agreement or any Indenture Supplement; provided, however, that any such failure caused by a non- willful act of the Servicer shall not constitute a Servicer Default if the Servicer promptly remedies such failure within five Business Days after receiving notice of such failure or within the applicable grace period, which will not exceed 35 Business Daysotherwise becoming aware of such failure;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement Agreement, which has an Adverse Effect a material adverse effect on the Noteholders Investor Securityholders of any Series, Class or Tranche Series then outstanding and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer, the Owner Trustee, the Indenture Trustee Servicer and the applicable Collateral Agent Trustee by the Holders of Notes evidencing Investor Securities representing not less than 50% of the aggregate unpaid principal amount Invested Amount of all Notes sustaining any Series materially adversely affected thereby and continues to have a material adverse effect on such Adverse Effect (or, with respect to any Investor Securityholders for such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related)period; or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06Section 8.7;
(c) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an Adverse Effect a material adverse effect on the rights of the Noteholders Investor Securityholders of any Series, Class or Tranche Series then outstanding and which Adverse Effect continues to be incorrect in any material respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee Servicer and the applicable Collateral Agent Trustee by the Holders of Notes evidencing Investor Securities representing not less than 50% of the aggregate unpaid principal amount Invested Amount of all Notes (any Series materially adversely affected thereby and continues to have a material adverse effect on such Investor Securityholders for such period; or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or receiver or conservator or receiver or liquidator in any bankruptcy proceeding or any other insolvency, readjust- ment readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, ; or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, bankruptcy proceeding or any other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) any other then, so long as such Servicer Default described shall not have been remedied, either the Trustee, or the Holders of Investor Securities representing more than 50% of the Aggregate Invested Amount, by notice then given in any Indenture Supplement.
(a) writing to act as a Successor the Servicer and receives an Officer's Certificate the Rating Agencies (and to the Trustee if given by the Investor Securityholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Serviceras servicer under this Agreement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Indenture Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a "Service Transfer") ); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder including, including without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral Accounts and the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account, the Excess Funding Account, the Interest Funding Account for or the applicable Asset PoolPrincipal Account, and any Series Account, or which shall thereafter be received with respect to the Collateral, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the TrustReceivables. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Accounts and the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral Accounts and the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations under the Enhancement with respect to any Series to the Successor Servicer. In connection with any Service Transfer, all reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the records, correspondence and other documents with respect to the Accounts and the Receivables and the other Trust Property to the Successor Servicer and amending this Agreement to reflect such succession as Successor Servicer pursuant to this Section 10.1 and Section 10.2 shall be paid by the Servicer (unless the Trustee is acting as the Successor Servicer on a temporary basis, in which case the original Servicer shall be responsible therefor) upon presentation of reasonable documentation of such costs and expenses. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (asubsection 10.1(a) above for a period of 10 five Business Days after the applicable grace period or under paragraph (bsubsection 10.1(b) or (c) above for a period of 60 Business Days after the applicable grace perioddays, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power outages, bank closings, communications outages, computer failure or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trusteeany Enhancement Provider, the applicable Collateral Agent Transferor and each Transferor the Holders of Investor Securities with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Fingerhut Receivables Inc)
Servicer Defaults. If any one of the following events (a "“Servicer Default"”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or into the Collection Account (including, without limitation, with respect to give notice or instructions to the Indenture Trustee to make any bifurcation and remittance of Collections) as required withdrawal or payment, transfer or deposit on the date the Servicer is required to do so under the terms by this Agreement which continues unremedied for a period of this Agreement, the Indenture or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 two Business Days;
(b) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or the other Transaction Documents to which has an Adverse Effect on the Noteholders Servicer is a party (including, without limitation, any material delegation of any Series, Class or Tranche the Servicer’s duties that is not permitted by Section 6.1) and which the same continues unremedied for a period of 60 30 days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure, failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee Administrative Agent or the applicable Collateral Agent or to the Servicer, the Owner Trustee, the Indenture Trustee and (ii) the applicable Collateral Agent by Holders of Notes evidencing not less than 50% date on which a Responsible Officer of the aggregate unpaid principal amount Servicer acquires knowledge thereof;
(c) the failure of all Notes sustaining such Adverse Effect the Servicer to make any payment when due (or, after giving effect to any related grace period) with respect to any recourse debt or other obligations, which debt or other obligations are in excess of United States $5,000,000, individually or in the aggregate, or the occurrence of any event or condition that has resulted in the acceleration of such recourse debt or other obligations, whether or not waived;
(d) an Insolvency Event shall occur with respect to the Servicer;
(e) the Servicer fails in any material respect to comply with the Credit and Collection Policy and the Servicing Standard regarding the servicing of the Collateral and the same continues unremedied for a period of 30 days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent or the Trustee and (ii) the date on which a Responsible Officer of the Servicer acquires knowledge thereof;
(f) as of any Determination Date, the Average Portfolio Charged-Off Ratio exceeds 3.5%;
(g) the Servicer consents or agrees to, or otherwise permits to occur, under circumstances in which the Servicer could have reasonably prevented the occurrence thereof, any material amendment, modification, change, supplement or rescission (any of the foregoing an “amendment” for purposes of this Section 6.18(g)) of or to the Credit and Collection Policy (after the adoption of same) in whole or in part that does could have a Material Adverse Effect on the Collateral, the Administrative Agent or the other Secured Parties, without the prior written consent of the Administrative Agent which amendment shall remain in effect for a period of ten Business Days after notice thereof is delivered to the Administrative Agent (which notice has been delivered within seven days after the effectiveness of such amendment) and the Administrative Agent shall not relate have delivered a written consent thereto during such ten Business Day period; provided, however, that such prior written consent shall not be required in the case of an amendment which was mandated by any Applicable Law or Governmental Authority;
(h) the Company or an Affiliate thereof shall cease to all Seriesbe the Servicer;
(i) the occurrence or existence of any change with respect to the Servicer which has a Material Adverse Effect;
(j) the Company fails to maintain the aggregate of its GAAP stockholders’ equity and subscribed stockholders’ equity in an amount equal to at least 80% of the initial committed equity, Classes or Tranchesas increased by (i) 80% of the proceeds of any equity offerings of the Company consummated after the Closing Date, not less than and (ii) 50% of cumulative positive net income earned by the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or Company after the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06Closing Date;
(ck) any failure by the Servicer to deliver any required Servicing Report or other Required Reports hereunder on or before the date occurring two Business Days after the date such report is required to be made or given, as the case may be, under the terms of this Agreement;
(l) any representation, warranty or certification made by the Servicer in this Agreement any Transaction Document or in any certificate delivered pursuant to this Agreement any Transaction Document shall prove to have been incorrect when made, which has an a Material Adverse Effect on the rights of Administrative Agent or the Noteholders of any Series, Class or Tranche Secured Parties and which Adverse Effect continues to be unremedied for a period of 60 30 days after the earlier to occur of (i) the date on which written notice thereof, of such incorrectness requiring the same to be remedied, remedied shall have been given to the Servicer by the Owner TrusteeAdministrative Agent or the Trustee and (ii) the date on which a Responsible Officer of the Servicer acquires knowledge thereof;
(m) [Reserved];
(n) any financial or other information reasonably requested by the Administrative Agent, the Indenture Trustee Liquidity Bank or the applicable Collateral AgentLender is not provided as requested within a reasonable amount of time following such request;
(o) the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of United States $7,500,000, individually or in the aggregate, and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than 60 consecutive days without a stay of execution;
(p) any change in the management of the Servicer (whether by resignation, termination, disability, death or lack of day to day management) relating to any four of ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇▇, or any failure by any four of the aforementioned Persons to provide active and material participation in the Servicer’s daily activities including, but not limited to, general management, underwriting, and the credit approval process and credit monitoring activities, which no later than 60 days after the occurrence of any event specified above is not cured by the Servicer hiring a reputable, experienced individual reasonably satisfactory to the Servicer, Administrative Agent to replace the Owner Trustee, Person who is no longer actively participating in the Indenture Trustee and management of the applicable Collateral Agent Servicer or which is not waived in writing by the Holders Administrative Agent; provided, however, that time relating to an individual’s vacation within the Servicer’s employee policy and customary industry standards shall not constitute lack of Notes evidencing not less than 50% day to day management or failure to provide active and material participation in the Servicer’s daily activities;
(q) any change in the control of the aggregate unpaid principal amount Servicer that takes the form of all Notes (or, with respect to any such representation, warranty either a merger or certification consolidation that does not relate to all Series, Classes or Tranches, not less than 50% comply with the provisions of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relatesSection 5.5(b);
(dr) the Servicer shall consent Subservicing Agreement with JPMorgan FCS Corp. ceases to be in effect for 90 days during such time as it is required to be in effect hereunder, and such Subservicing Agreement is not replaced with subservicing arrangements satisfactory to the appointment of a bankruptcy trustee or conservator or receiver or liquidator Administrative Agent in any bankruptcy proceeding or other insolvency, readjust- ment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligationssole discretion; or
(es) any other Servicer Default described in any Indenture Supplement.
(a) to act as a Successor Servicer and receives an Officer's Certificate the unpaid outstanding face amount of the Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicer. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.02, all authority and power $100,000,000 Delayed Draw Extendible Senior Secured Notes due 2008 of the Servicer under this Agreement shall pass to Company (the “Fortress Notes”) has been declared due and be vested payable in full following the Successor Servicer (a "Service Transfer") and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure occurrence of the Servicer to cooperate) to execute and deliver, on behalf an event of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset Pool, or which shall thereafter be received default with respect to the Collateral, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable Fortress Notes; then notwithstanding anything herein to the Trust. The contrary, so long as any such Servicer Default shall not have been remedied within 20 Business Days transfer its electronic records or electronic copies thereof relating any applicable cure period prior to the Receivables date of the Servicer Termination Notice (defined below), the Administrative Agent, by written notice to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer (with a copy to the Successor Trustee) (a “Servicer Termination Notice”), may terminate all other records, correspondence and documents necessary for the continued servicing of the Collateral in the manner rights and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require obligations of the Servicer to disclose to the Successor as Servicer information of any kind which the Servicer deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trustee, the applicable Collateral Agent and each Transferor with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligationsAgreement.
Appears in 1 contract
Sources: Secured Loan and Servicing Agreement (NewStar Financial, Inc.)
Servicer Defaults. If any one of the following events (a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give notice or instructions to the Indenture Trustee to make any required withdrawal or payment, transfer or deposit on the date the Servicer is required to do so under the terms of this Agreement, the Indenture or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Days;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement which has an Adverse Effect on the Noteholders of any Series, Class or Tranche and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06;
(c) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an Adverse Effect on the rights of the Noteholders of any Series, Class or Tranche and which Adverse Effect continues for a period of 60 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) any other Servicer Default described in any Indenture Supplement.
. Then, in the event of any Servicer Default, so long as the Servicer Default shall not have been remedied, either the Indenture Trustee or the Holders of Notes evidencing more than 50% of the aggregate unpaid principal amount of all affected Notes, by notice then given in writing to the Servicer and the Owner Trustee (aand to the Indenture Trustee if given by the Noteholders) (a "TERMINATION NOTICE"), may terminate all but not less than all the rights and obligations of the Servicer as Servicer under this Agreement; PROVIDED, HOWEVER, if within 60 days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with subsection 10.02(a) to act as a Successor Servicer and receives an Officer's Certificate of the Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicer. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a "Service TransferSERVICE TRANSFER") and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for 74 the applicable Asset Pool, or which shall thereafter be received with respect to the Collateral, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trustee, the applicable Collateral Agent and each Transferor with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (First Usa Credit Card Master Trust)
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuingcontinuing with respect to the Servicer:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice or instructions to the Indenture Trustee to make any required withdrawal or such payment, transfer or deposit or to give notice to the Indenture Trustee as to any action to be taken under any Enhancement Agreement on or before the date occurring five days after the Servicer date such payment, transfer or deposit or such instruction or notice is required to do so be made or given, as the case may be, under the terms of this Agreement, the Indenture or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Days;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement which has an Adverse Effect a material adverse effect on the Noteholders of any Series, Class or Tranche and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Indenture Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect ;
(or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or c) the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 3.01 and 7.065.07;
(cd) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an Adverse Effect a material adverse effect on the rights of the Noteholders of any Series, Class or Tranche Series and which Adverse Effect material adverse effect continues for a period of 60 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Indenture Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(de) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator or other similar official in any bankruptcy proceeding or other bankruptcy, insolvency, readjust- ment readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator or other similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-winding up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 daysunstayed; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) then, in the event of any other Servicer Default, so long as the Servicer Default described shall not have been remedied, the Indenture Trustee, by notice then given in any Indenture Supplement.
writing to the Servicer (aa "Termination Notice"), may terminate all but not less than all of the rights and obligations (other than its obligations that have accrued up to the time of such termination) to act as a Successor Servicer and receives an Officer's Certificate of the Servicer as Servicer under this Agreement and in and to the effect that Receivables and the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicerproceeds thereof. After receipt by the Servicer of a Termination Notice, and 40 TRANSFER AND SERVICING AGREEMENT on the date that a Successor Servicer is shall have been appointed by the Indenture Trustee pursuant to Section 10.026.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a "Service Transfer") and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset PoolAccount, or which shall thereafter be received with respect to the CollateralReceivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the TrustServicer. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 5.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestsinterest;
(f) failure on the part of the Servicer to engage a back-up Servicer with 180 days of the Initial Closing Date. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (aunder Section 6.01(a) above for a period of 10 five Business Days after the applicable grace period or Days, under paragraph (bSection 6.01(b) or (c) above for a period of 60 Business Days after the applicable grace perioddays or under Section 6.01(d) for a period of 60 days, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared declares or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable its best efforts to perform its respective obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, any Agents, any Enhancement Providers and the Owner Trustee, the applicable Collateral Agent and each Transferor with an Officer's Officers' Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations. The Servicer shall immediately notify the Indenture Trustee, and each Rating Agency in writing of any Servicer Default.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (CNH Wholesale Receivables Inc)
Servicer Defaults. If any one of the following ----------------- events (a "Servicer Default") shall occur and be continuing:: ----------------
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice or instructions to the Indenture Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, ---------- withdrawal, or payment under any Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit withdrawal or payment, transfer drawing or deposit on the date the Servicer such instruction or notice is required to do so be made or given, as the case may be, under the terms of this Agreement, the Indenture or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Days;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement Agreement, which has an Adverse Effect a material adverse effect on the Noteholders Certificateholders of any Series, Class or Tranche Series (which determination shall be made without regard to whether funds are available to the Certificateholders of any Series under any applicable Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer, the Owner Trustee, the Indenture Trustee Servicer and the applicable Collateral Agent Trustee by (i) the Holders of Notes Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the aggregate unpaid principal amount Investor Interest of all Notes sustaining any Series adversely affected thereby or (ii) to the extent provided in any Supplement by the related Enhancement Provider, and continues to materially adversely affect such Adverse Effect (or, with respect to any Investor Certificateholders for such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related)period; or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06;Section 8.7; -----------
(c) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an Adverse Effect a material adverse effect on the rights of the Noteholders Certificateholders of any Series, Class or Tranche Series (which determination shall be made without regard to whether funds are available to the Certificateholders of any Series under any applicable Enhancement) and which Adverse Effect continues to be incorrect in any material respect for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee Servicer and the applicable Collateral Agent Trustee by (i) the Holders of Notes Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the aggregate unpaid principal amount Investor Interest of all Notes any Series adversely affected thereby or (ii) to the extent provided in any Supplement by the related Enhancement Provider, and continues to materially adversely affect such Investor Certificateholders for such period; or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) any other then, so long as such Servicer Default described shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Aggregate Investor Interest, by notice then given in any Indenture Supplement.
writing to the Servicer (aand to the Trustee if given by the Investor Certificateholders) to act as (a Successor Servicer "Termination Notice"), may terminate all of the ------------------ rights and receives an Officer's Certificate obligations of the Servicer to the effect that the as Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicerunder this Agreement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Indenture Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this ------------ Agreement shall pass to and be vested in the a Successor Servicer (a "Service Transfer") Servicer; and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder including, including without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for Account, the applicable Asset PoolExcess Funding Account, and any Series Account, or which shall thereafter be received with respect to the CollateralReceivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds Recoveries and Interchange (if any) applicable allocable to the Trust. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to ------------ disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests. Notwithstanding Subject to the foregoingimmediately preceding sentence, a delay in or failure of performance referred the Servicer agrees to in paragraph (a) above for a period of 10 Business Days after grant to the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after Successor Servicer an exclusive, non-transferrable, non-assignable license to utilize the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Accounts and the Receivables; provided, however, that such delay or failure was caused software shall be used by an act the -------- ------- Successor Servicer solely for the purposes of God or servicing the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causesAccounts and the Receivables. The preceding sentence shall not relieve Servicer shall, on the Servicer from using date of any servicing transfer, transfer all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trustee, the applicable Collateral Agent and each Transferor with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so rights and obligations under the Enhancement with respect to perform its obligationsany Series to the Successor Servicer.
Appears in 1 contract
Servicer Defaults. If any one of the following events (a "“Servicer Default"”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give notice or instructions to bank holding the Indenture Trustee Lockbox or ACH Account to make any required withdrawal or such payment, transfer or deposit on or before the date occurring 3 Business Days after the Servicer date such payment, transfer or deposit or such instruction or notice is required to do so be made or given, as the case may be, under the terms of this Servicing Agreement, the Indenture provided however, that where such failure is due to oversight, error or any Indenture Supplementother reason not including bad faith on the part of Servicer, or within the applicable grace period, which will not exceed 35 such 3 Business DaysDay period shall commence upon notice to Servicer from Buyers;
(b) any failure on the part of the Servicer to duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Servicing Agreement which has an Adverse Effect on the Noteholders of any Series, Class or Tranche and which continues unremedied for a period of 60 30 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06Buyers;
(c) any representation, warranty or certification made by the Servicer in this Servicing Agreement or in any certificate delivered pursuant to this Servicing Agreement shall prove to have been materially incorrect when made, which has an Adverse Effect a materially adverse effect on the rights of the Noteholders of any Series, Class or Tranche Loans (taken as a whole) and which Adverse Effect materially adverse effect continues for a period of 60 30 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates)Buyers;
(d) the any Non-Compliance Event; or
(e) Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or an action seeking a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered commenced against the Servicer and such decree or order action shall have remained in force undischarged or unstayed for a period of 60 daysdays or an order or decree providing for such relief shall have been entered; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) any other Servicer Default described in any Indenture Supplement.
(a) then, Buyers, by notice given to act as a Successor Servicer and receives an Officer's Certificate of the Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicer. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a "Service Transfer") and“Termination Notice”), without limitationmay terminate all, the Indenture Trustee is hereby authorized and empowered (upon the failure but not less than all, of the rights and obligations of Servicer to cooperate) to execute as servicer under this Servicing Agreement and deliver, on behalf of the appoint a Successor Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer subject to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset Pool, or which shall thereafter be received with respect to the Collateral, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the Trust. The Servicer shall within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interests4.2. Notwithstanding the foregoing, a delay in or failure of performance referred to in shall not constitute a Servicer Default (i) under paragraph (a) above for a period of 10 Business Days after the applicable grace period or (ii) under paragraph (b), (c) or (cd) above for a period of 60 15 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, terrorism, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement Servicing Agreement, and the Servicer shall provide the Indenture Trustee, the Owner Trustee, the applicable Collateral Agent and each Transferor Buyers with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations. In addition, if Servicer experiences a material deterioration in its financial condition such that Servicer is unable to fulfill its obligations under this Servicing Agreement in a material respect (such material deterioration in financial condition, a “Financial Condition Event”), Servicer shall promptly give notice to Buyers of such Financial Condition Event. Each of Buyers and Servicer shall have the right, at their respective option, to terminate all, but not less than all, of the rights and obligations of Servicer as servicer under this Servicing Agreement and have Buyers appoint a Successor Servicer, subject to Section 4.2, by providing a Termination Notice to the other party upon 90 days prior written notice, unless Servicer cures such Financial Condition Event within such 90 days. If a Financial Condition Event is not cured within such 90 days, then such Financial Condition Event shall constitute a Servicer Default.
Appears in 1 contract
Sources: Servicing Agreement (GreenSky, Inc.)
Servicer Defaults. If any one of the following events (each, a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make deliver to the related Trustee for deposit in any payment, transfer of the Accounts or deposit the Certificate Distribution Account any required payment or to give notice or instructions to direct the Indenture Trustee to make any required withdrawal distributions therefrom, which failure continues unremedied for a period of three Business Days after discovery of such failure by an officer of the Servicer or payment, transfer or deposit on after the date on which written notice of such failure, requiring the same to be remedied, shall have been given (i) to the Servicer is required by the related Trustee or (ii) to do so under the terms Servicer and to the Trustees by the Holders of this AgreementNotes, evidencing not less than 25% of the Indenture or any Indenture Supplement, or within Outstanding Amount of the applicable grace period, which will not exceed 35 Business DaysNotes;
(b) failure on the part of by the Servicer (or so long as the Servicer is AHFC, the Seller) duly to observe or to perform in any material respect any other covenants or agreements of the Servicer (or so long as the Servicer is AHFC, the Seller) set forth in this Agreement or any other Basic Document, which has an Adverse Effect on failure shall (i) materially and adversely affect the rights of Certificateholders or Noteholders of any Series, Class or Tranche and which continues (ii) continue unremedied for a period of 60 90 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given (A) to the Servicer or the Seller (as the case may be) by the Owner Trusteerelated Trustee or (B) to the Servicer or the Seller (as the case may be), and to the related Trustee by the Holders of Notes, evidencing not less than 25% of the Outstanding Amount of the Notes; or
(c) the occurrence of an Insolvency Event with respect to the Seller or the Servicer; then, and in each and every case, so long as the Servicer Default shall not have been remedied, either the Indenture Trustee or the applicable Collateral Agent or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06;
(c) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an Adverse Effect on the rights of the Noteholders of any Series, Class or Tranche and which Adverse Effect continues for a period of 60 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 5025% of the aggregate unpaid principal amount Outstanding Amount of all the Notes (or, if the Notes have been paid in full and the Indenture has been discharged in accordance with respect to any such representationits terms, warranty or certification that does not relate to all Series, Classes or Tranches, by holders of Certificates evidencing not less than 5025% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(dPercentage Interests) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator by notice then given in any bankruptcy proceeding or other insolvency, readjust- ment of debt, marshalling of assets and liabilities or similar proceedings of or relating writing to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Noteholders) may terminate all the rights and obligations (other than the obligations set forth in Section 6.02 that accrued on or prior to the effective date of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(etermination) any other Servicer Default described in any Indenture Supplement.
(a) to act as a Successor Servicer and receives an Officer's Certificate of the Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicerunder this Agreement. After receipt by the Servicer of a Termination Notice, and on On or after the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.02specified in such written notice, all authority and power of the Servicer under this Agreement shall Agreement, whether with respect to the Notes, the Certificates or the Receivables or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer (a "Service Transfer") as may be appointed under Section 7.02; and, without limitation, the Indenture Trustee is and the Owner Trustee are hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf for the benefit of the predecessor Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and or accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfernotice of termination, whether to complete the transfer and endorsement of the Receivables and related documents, or otherwise. The predecessor Servicer agrees to shall cooperate with the Indenture Trustee and such Successor Servicer and the Trustees in effecting the termination of the responsibilities and rights of the predecessor Servicer to conduct servicing hereunderunder this Agreement, including the transfer to such the Successor Servicer for administration by it of all authority of cash amounts that shall at the Servicer to service the Collateral provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer time be held by the predecessor Servicer for deposit, or which have been deposited by the predecessor Servicer, in the Collection Accounts or the Certificate Distribution Account for the applicable Asset Pool, or which shall thereafter be received with respect to the Collateral, Receivables that shall at that time by held by the predecessor Servicer. All reasonable costs and expenses (including servicer conversion costs and attorneys' fees) incurred in assisting connection with transferring the Receivable Files to the Successor Servicer and in enforcing all rights amending this Agreement to Insurance Proceeds and Interchange (if any) applicable reflect such succession as Servicer pursuant to the Trust. The Servicer shall within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require be paid by the predecessor Servicer to disclose to the Successor Servicer information upon presentation of any kind which the Servicer deems to be confidential, the Successor Servicer shall be required to enter into reasonable documentation of such customary licensing costs and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestsexpenses. Notwithstanding the foregoing, a delay Any costs or expenses incurred in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute connection with a Servicer Default if such delay shall constitute an expense of administration under Title 11 of the United States Bankruptcy Code or failure could not be prevented by any other applicable Federal or State bankruptcy laws. Upon receipt of notice of the exercise occurrence of reasonable diligence by the a Servicer and such delay or failure was caused by an act of God or the public enemyDefault, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trustee, the applicable Collateral Agent and Trustee shall give notice thereof to each Transferor with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligationsRating Agency.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Honda Auto Receivables 2008-1 Owner Trust)
Servicer Defaults. If any one of the following events (a "“Servicer Default"”) shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice or instructions to the Indenture Trustee pursuant to make the terms of this Agreement or any required withdrawal Supplement on or before the date occurring five Business Days after the date such payment, transfer or deposit on the date the Servicer or such instruction or notice is required to do so be made or given, as the case may be, under the terms of this Agreement, the Indenture Agreement or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Days;
(b) failure on the part of the Servicer to duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement which has an Adverse Effect a material adverse effect on the Noteholders interests hereunder of the Investor Certificateholders of any Series, Series or Class or Tranche (which determination shall be made without regard to whether funds are then available pursuant to any Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer, the Owner Trustee, the Indenture Trustee Servicer and the applicable Collateral Agent Trustee by Holders of Notes Investor Certificates evidencing not less than 5025% of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect Investor Certificates (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 5025% of the aggregate unpaid principal amount of all Series, Classes or Tranches Series to which such failure relatedrelates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.028.2 and 8.7, 7.05 and 7.06;
(c) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an Adverse Effect on the rights a Responsible Officer of the Noteholders Trustee has actual knowledge of any Series, Class or Tranche such delegation and which Adverse Effect such delegation continues unremedied for a period of 60 15 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee Servicer and the applicable Collateral Agent Trustee by the Holders of Notes Investor Certificates evidencing not less than 5025% of the aggregate unpaid principal amount of all Notes Investor Certificates;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Enhancement) and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less than 25% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes 25% of the aggregate unpaid principal amount of all Series to which such representation, warranty or Tranchescertification relates); or
(d) the Servicer shall fail generally to, or admit in writing its inability to, pay its debts as they become due; or a proceeding shall have been instituted in a court having jurisdiction in the premises seeking a decree or order for relief in respect of the Servicer in an involuntary case under any Debtor Relief Law, or for the appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or other similar official of such Person or for any substantial part of its property, or for the winding-up or liquidation of its affairs and, if instituted against the Servicer, any such proceeding shall continue undismissed or unstayed and in effect, for a period of 60 consecutive days, or any of the actions sought in such proceeding shall occur; or the commencement by the Servicer, of a voluntary case under any Debtor Relief Law, or such Person’s consent to the entry of an order for relief in an involuntary case under any Debtor Relief Law, or consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or other similar official of such Person or for any substantial part of its property, or any general assignment for the benefit of creditors; or such Person or any subsidiary of such Person shall have taken any corporate action in furtherance of any of the foregoing actions; then, in the event of any Servicer Default, so long as the Servicer Default shall not less have been remedied, either the Trustee or the Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all SeriesInvestor Certificates, Classes or Tranches to which such representation, warranty or certification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment of debt, marshalling of assets and liabilities or similar proceedings of or relating by notice given to the Servicer or (and to the Trustee and any Enhancement Provider entitled thereto pursuant to the relevant Supplement if given by the Investor Certificateholders) (a “Termination Notice”), may terminate all but not less than all the rights and obligations of or relating the Servicer, as Servicer, under this Agreement and in and to all or substantially all its propertythe Receivables and the proceeds thereof; provided, or a decree or order however, if within 60 days of receipt of a court or agency or supervisory authority having jurisdiction Termination Notice the Trustee is unable to obtain any bids from Eligible Servicers in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) any other Servicer Default described in any Indenture Supplement.
(aaccordance with subsection 10.2(c) to act as a Successor Servicer and receives an Officer's ’s Certificate of the Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume offer the role Transferor the right at its option to purchase the Certificateholders’ Interest and the interest in the Trust Assets represented by any Participation on the Distribution Date occurring in the next calendar month. The purchase price for the Certificateholders’ Interest shall be equal to the sum of Successor Servicerthe amounts specified therefor with respect to each outstanding Series in the related Supplement. The Transferor shall notify the Trustee prior to the Record Date for the related Distribution Date of the purchase if it is exercising such option. If it exercises such option, the Transferor shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Transferor, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Indenture Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the Successor Servicer (a "“Service Transfer") ”); and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperate with the Indenture Trustee and such the Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder including, including without limitation, the transfer to such the Successor Servicer of all authority of the Servicer to service the Collateral Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset PoolAccount, or which shall thereafter be received with respect to the CollateralReceivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the TrustProceeds. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary appropriate to protect its interests. Notwithstanding the foregoing, a any delay in or failure of performance referred to in paragraph (aunder subsection 10.1(a) above for a period of 10 five Business Days after the applicable grace period or under paragraph subsection 10.1(b) or (c) for a period of 60 days (in addition to any period provided in subsection 10.1(a), (b) or (c)) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default until the expiration of such additional five Business Days or 60 days, respectively, if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable the obligation to use its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and any Supplement and the Servicer shall provide the Indenture Trustee, each Rating Agency, any Enhancement Provider entitled thereto pursuant to the Owner Trusteerelevant Supplement, the applicable Collateral Agent Holder of the Transferor Certificate and each Transferor the Investor Certificateholders with an Officer's ’s Certificate giving prompt immediate notice of such failure or delay by it, together with a description of its efforts to so to perform its obligations.
Appears in 1 contract
Servicer Defaults. If any one of the following events (a "Servicer Default") shall occur and be continuingcontinuing with respect to the Servicer:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or to give notice or instructions to the Indenture Trustee to make any required withdrawal or payment, transfer or deposit or to take any action under any Enhancement Agreement on or before the date the Servicer such payment, transfer or deposit or such instruction or notice is required to do so be made or given, as the case may be, under the terms of this Agreement, which failure is not cured within five Business Days after notice of such failure from the Indenture or any Indenture Supplement, or within Trustee to the applicable grace period, which will not exceed 35 Business DaysServicer;
(b) failure on the part of the Servicer duly to observe or perform its covenant not to create any Lien on any Receivable which failure has a material adverse effect on the Certificateholders and which continues unremedied for a period of sixty (60) days after written notice to it of such failure; provided, however, that a "Servicer Default" shall not be deemed to have occurred if the Seller or the Servicer shall have repurchased the related Receivables or, if applicable, all of the Receivables during such period in accordance with the provisions of this Agreement;
(c) failure on the part of the Servicer duly to observe or perform any material respect any other covenants or agreements of the Servicer set forth in this Agreement (other than with respect to those specified in clause (a) or (b) above and with respect to clauses (viii), (ix) and (x) under Section 3.3(a) hereof, to the extent the terms of Section 3.3(c) hereof have been complied with) which failure has an Adverse Effect a material adverse effect on the Noteholders of any Series, Class or Tranche Certificateholders and which continues unremedied for a period of 60 thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06;
(cd) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an Adverse Effect a material adverse effect on the rights of the Noteholders Investor Certificateholders of any Series, Class or Tranche Series and which Adverse Effect material adverse effect continues for a period of 60 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee; provided, however, that a "Servicer Default" shall not be deemed to have occurred if the Indenture Trustee Seller or the applicable Collateral Agent, or to Servicer shall have repurchased the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes (related Receivables or, if applicable, all of such Receivables during such period in accordance with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% the provisions of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates)this Agreement;
(de) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator or other similar official in any bankruptcy proceeding or other bankruptcy, insolvency, readjust- ment readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator or other similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 sixty days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) then, in the event of any other Servicer Default, so long as the Servicer Default described shall not have been remedied, the Trustee, by notice then given in any Indenture Supplement.
writing to the Servicer (aa "Termination Notice"), may terminate all but not less than all of the rights and obligations (other than its obligations that have accrued up to the time of such termination) to act as a Successor Servicer and receives an Officer's Certificate of the Servicer as Servicer under this Agreement and in and to the effect that Receivables and the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicerproceeds thereof. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Indenture Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a "Service Transfer") and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer; provided that in no event shall the Servicer incur any liability for any such action by the Trustee. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral Receivables provided for under this Agreement, including, without limitation, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset PoolAccount, or which shall thereafter be received with respect to the CollateralReceivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the TrustServicer. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestsinterest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (aunder Section 10.1(a) above for a period of 10 Business Days after the applicable grace period or under paragraph Section 10.1(b), (bc) or (cd) above for a period of 60 Business Days after the applicable grace periodDays, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement Agreement, and the Servicer shall provide the Indenture Trustee, the Owner Trusteeany Agents, any Enhancement Providers, the applicable Collateral Agent Seller and each Transferor the Certificateholders with an Officer's Officers' Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations. The Servicer shall immediately notify the Trustee in writing of any Servicer Default.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (CDF Funding, Inc.)
Servicer Defaults. If any one of the following events (a ----------------- "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice or instructions to the Indenture Trustee to make any required withdrawal or such payment, transfer or deposit or to give notice to the Trustee as to any required drawing or payment under any Enhancement on or before the date occurring five Business Days after the Servicer date such payment, transfer, deposit or drawing or such instruction or notice is required to do so be made or given, as the case may be, under the terms of this Agreement, the Indenture Agreement or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Days;
(b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or any Supplement, which has an Adverse Effect a material adverse effect on the Noteholders Certificateholders of any Series, Class or Tranche Series then outstanding (without regard to the amount of any Enhancement) and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent Transferor, or to the Servicer, the Owner Trustee, the Indenture Trustee Transferor and the applicable Collateral Agent Trustee by the Holders of Notes Investor Certificates evidencing not less Undivided Interests aggregating more than 50% of the aggregate unpaid principal Invested Amount of any Series adversely affected thereby, and which continues to materially adversely affect the rights of the Certificateholders of any Series then outstanding (without regard to the amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); Enhancement) or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02Section 8.7; provided, 7.05 and 7.06however, that any such failure that relates to any particular Receivable or group of Receivables shall not constitute a Servicer Default if the Servicer has made a deposit in the Collection Account with respect to such failure in accordance with Section 3.3;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has an Adverse Effect a material adverse effect on the rights of the Noteholders Certificateholders of any Series, Class or Tranche Series then outstanding (without regard to the amount of any Enhancement) and which Adverse Effect continues to be incorrect in any material respect and which continues to affect materially and adversely the rights of the Certificateholders of any Series (without regard to the amount of any Enhancement) for a period of 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral AgentTransferor, or to the Servicer, the Owner Trustee, the Indenture Trustee Transferor and the applicable Collateral Agent Trustee by the Holders of Notes Investor Certificates evidencing not less Undivided Interests aggregating more than 50% of the aggregate unpaid principal amount Invested Amount of all Notes (any Series adversely affected thereby; or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) any other then, so long as such Servicer Default described shall not have been remedied, the Trustee, the Transferor or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Aggregate Invested Amount, by notice then given in any Indenture Supplement.
writing to the Servicer (aand to the Trustee and the Transferor if given by the Investor Certificateholders) to act as (a Successor Servicer "Termination ----------- Notice"), may terminate all of the rights and receives an Officer's Certificate obligations of the Servicer as ------ Servicer under this Agreement and in and to the effect that Receivables and the proceeds thereof and appoint a new Servicer can(a "Service Transfer"). The rights and ---------------- interests of the Transferor Interest will not in good faith cure be affected by any Service Transfer. The Trustee, upon giving or receiving a Termination Notice shall immediately notify the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role Rating Agencies and any Enhancement Provider of Successor Servicersuch notice. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer is shall have been appointed by the Indenture Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Agreement shall pass to and be vested in the a Successor Servicer (a "Service Transfer") Servicer, and, without limitation, the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to take all reasonable actions to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset PoolAccount, or which shall thereafter be received with respect to the CollateralReceivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the TrustRecoveries. The Servicer shall within 20 Business Days promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestsinterest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (aSection 10.1(a) above for a period of 10 Business Days after the applicable grace period or under paragraph (ba delay in or failure of performance referred to in Section 10.1(b) or (c) above for a period of 60 Business Days after the applicable grace period, period shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, floods nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trusteeany Enhancement Provider, the applicable Collateral Agent Transferor and each Transferor the Holders of Investor Certificates with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations. The Servicer shall immediately notify a Responsible Officer of the Trustee in writing of any Servicer Default.
Appears in 1 contract
Sources: Master Pooling and Servicing Agreement (Circuit City Credit Card Master Trust)
Servicer Defaults. If any one of the following events (each, a "“Servicer Default"”) shall occur and be continuing:
(a) any failure by the Servicer to make deliver to the related Trustee for deposit in any payment, transfer of the Accounts or deposit the Certificate Distribution Account any required payment or to give notice or instructions to direct the Indenture Trustee to make any required withdrawal distributions therefrom, which failure continues unremedied for a period of three Business Days after discovery of such failure by an officer of the Servicer or payment, transfer or deposit on after the date on which written notice of such failure, requiring the same to be remedied, shall have been given (i) to the Servicer is required by the related Trustee or (ii) to do so under the terms Servicer and to the Trustees by the Holders of this AgreementNotes, evidencing not less than 25% of the Indenture or any Indenture Supplement, or within Outstanding Amount of the applicable grace period, which will not exceed 35 Business DaysNotes;
(b) failure on the part of by the Servicer (or so long as the Servicer is AHFC, the Seller) duly to observe or to perform in any material respect any other covenants or agreements of the Servicer (or so long as the Servicer is AHFC, the Seller) set forth in this Agreement or any other Basic Document, which has an Adverse Effect on failure shall (i) materially and adversely affect the rights of Certificateholders or Noteholders of any Series, Class or Tranche and which continues (ii) continue unremedied for a period of 60 90 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given (A) to the Servicer or the Seller (as the case may be) by the Owner Trusteerelated Trustee or (B) to the Servicer or the Seller (as the case may be), and to the related Trustee by the Holders of Notes, evidencing not less than 25% of the Outstanding Amount of the Notes; or
(c) the occurrence of an Insolvency Event with respect to the Seller or the Servicer; then, and in each and every case, so long as the Servicer Default shall not have been remedied, either the Indenture Trustee or the applicable Collateral Agent or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06;
(c) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an Adverse Effect on the rights of the Noteholders of any Series, Class or Tranche and which Adverse Effect continues for a period of 60 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 5025% of the aggregate unpaid principal amount Outstanding Amount of all the Notes (or, if the Notes have been paid in full and the Indenture has been discharged in accordance with respect to any such representationits terms, warranty or certification that does not relate to all Series, Classes or Tranches, by holders of Certificates evidencing not less than 5025% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(dPercentage Interests) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator by notice then given in any bankruptcy proceeding or other insolvency, readjust- ment of debt, marshalling of assets and liabilities or similar proceedings of or relating writing to the Servicer (and to the Indenture Trustee and the Owner Trustee if given by the Noteholders) may terminate all the rights and obligations (other than the obligations set forth in Section 6.02 that accrued on or prior to the effective date of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(etermination) any other Servicer Default described in any Indenture Supplement.
(a) to act as a Successor Servicer and receives an Officer's Certificate of the Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicerunder this Agreement. After receipt by the Servicer of a Termination Notice, and on On or after the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.02specified in such written notice, all authority and power of the Servicer under this Agreement shall Agreement, whether with respect to the Notes, the Certificates or the Receivables or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer (a "Service Transfer") as may be appointed under Section 7.02; and, without limitation, the Indenture Trustee is and the Owner Trustee are hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf for the benefit of the predecessor Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and or accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfernotice of termination, whether to complete the transfer and endorsement of the Receivables and related documents, or otherwise. The predecessor Servicer agrees to shall cooperate with the Indenture Trustee and such Successor Servicer and the Trustees in effecting the termination of the responsibilities and rights of the predecessor Servicer to conduct servicing hereunderunder this Agreement, including the transfer to such the Successor Servicer for administration by it of all authority of cash amounts that shall at the Servicer to service the Collateral provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer time be held by the predecessor Servicer for deposit, or which have been deposited by the predecessor Servicer, in the Collection Accounts or the Certificate Distribution Account for the applicable Asset Pool, or which shall thereafter be received with respect to the Collateral, Receivables and all Payments Ahead that shall at that time by held by the predecessor Servicer. All reasonable costs and expenses (including servicer conversion costs and attorneys’ fees) incurred in assisting connection with transferring the Receivable Files to the Successor Servicer and in enforcing all rights amending this Agreement to Insurance Proceeds and Interchange (if any) applicable reflect such succession as Servicer pursuant to the Trust. The Servicer shall within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section shall require be paid by the predecessor Servicer to disclose to the Successor Servicer information upon presentation of any kind which the Servicer deems to be confidential, the Successor Servicer shall be required to enter into reasonable documentation of such customary licensing costs and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestsexpenses. Notwithstanding the foregoing, a delay Any costs or expenses incurred in or failure of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute connection with a Servicer Default if such delay shall constitute an expense of administration under Title 11 of the United States Bankruptcy Code or failure could not be prevented by any other applicable Federal or State bankruptcy laws. Upon receipt of notice of the exercise occurrence of reasonable diligence by the a Servicer and such delay or failure was caused by an act of God or the public enemyDefault, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trustee, the applicable Collateral Agent and Trustee shall give notice thereof to each Transferor with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligationsRating Agency.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Honda Auto Receivables 2004-3 Owner Trust)
Servicer Defaults. If any one of the following events (herein called a ----------------- "Servicer Default") shall occur have occurred and be continuing:
(a) any failure by , either the Servicer to make any paymentTrustee, transfer or deposit or to give notice or instructions to the Indenture Trustee to make any required withdrawal or payment, transfer or deposit ---------------- on the date the Servicer is required to do so under the terms of this Agreement, the Indenture or any Indenture Supplement, or within the applicable grace period, which will not exceed 35 Business Days;
(b) failure on the part behalf of the Servicer duly to observe Noteholders or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement which has an Adverse Effect on the Noteholders of any Series, Class or Tranche and which continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by Holders of Notes evidencing not less having more than 50% of the aggregate unpaid principal amount Noteholders' interests of all outstanding Notes sustaining such Adverse Effect (or, with respect to any such failure that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such failure related); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 7.02, 7.05 and 7.06;
(c) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an Adverse Effect on the rights of the Noteholders of any Series, Class or Tranche and which Adverse Effect continues for a period of 60 days after the date on which upon written notice thereof, requiring the same to be remediednotice, shall have been given the right to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent by the Holders of Notes evidencing not less than 50% terminate all of the aggregate unpaid principal amount of all Notes (or, with respect to any such representation, warranty or certification that does not relate to all Series, Classes or Tranches, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches to which such representation, warranty or certification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjust- ment of debt, marshalling of assets rights and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) any other Servicer Default described in any Indenture Supplement.
(a) to act as a Successor Servicer and receives an Officer's Certificate obligations of the Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall assume the role of Successor Servicer. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer is appointed by the Indenture Trustee pursuant to Section 10.02, all authority and power of the as Servicer under this Agreement shall pass and to and be vested appoint a new Servicer (the "Successor Servicer") as provided in Section 11.2 of the Base Indenture. A ------------------ ------------ Successor Servicer (must be legally qualified and have the corporate power and authority to service the Receivables and must have demonstrated the ability to service a "Service Transfer") and, without limitation, the Indenture Trustee is hereby authorized portfolio of similar receivables in accordance with applicable industry standards of skill and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfercare. The Servicer agrees to cooperate with the Indenture Trustee and such any Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Collateral Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in the Collection Account for the applicable Asset PoolAccount, or which shall thereafter be received with respect to the CollateralReceivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds and Interchange (if any) applicable to the TrustServicer. The Servicer shall within 20 Business Days promptly transfer all of its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Collateral Receivables in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall deliver, or cause to be delivered, to the Successor Servicer licenses, or the Successor Servicer shall otherwise be satisfied with its ability, to use any computer programs, material tapes, disks, cassettes and data necessary to permit the collection of the Receivables by the Successor Servicer without the participation of TWA. To the extent that compliance with this Section 9.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem reasonably necessary to protect its interestsinterest. Notwithstanding Upon the foregoing, a delay in or failure event of performance referred to in paragraph (a) above for a period of 10 Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemyDefault, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide to the Indenture TrusteeTrustee access to its facilities, the Owner Trusteesystems, the applicable Collateral Agent equipment and each Transferor with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligationsleasehold agreements.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Trans World Airlines Inc /New/)